KWAN CHUI KWOK YING and Another v. TAO WAI CHUN and others

MP No.2996 of 1990

IN THE SUPREME COURT OF HONG KONG

HIGH COURT

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J U D G M E N T

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Introduction

1. Mr Kwan Kai Ming (Mr Kwan) was a man of Chinese race. He was born in China on 26th August 1902. He was a successful businessman in Hong Kong, Manila and Macau. He passed away on 25th May 1983 in Hong Kong. There was a huge estate. Unfortunately, he left no will but some domestic problems which had led to three sets of court proceedings in Hong Kong and further proceedings in Macau.

2. During his life time, he had four women and quite a number of children. The first was Madam Wong Woon Wan. There is no serious dispute, at least for the purpose of these proceedings, that Mr Kwan and Madam Wong were lawfully married in either 1923 or 1924 in Hong Kong. It is the plaintiffs' case that she gave birth to 14 children by Mr Kwan. Three of them had passed away at an early age and are irrelevant to the present proceedings. (In the written opening of Counsel for the plaintiffs, it was incorrectly stated that two had predeceased her).

3. The second woman was Madam Au Yeung King. Again, it is not seriously disputed that Madam Au Yeung was taken as a lawful concubine by Mr Kwan in about 1948. She gave birth to one child by Mr Kwan, that is the 16th defendant.

4. The third woman was Madam Chui Kwok Ying, the 1st plaintiff. Madam Wong passed away on 23rd March 1959. It is accepted that on 27th May 1960, Mr Kwan and the 1st plaintiff went through a marriage ceremony in the Marriage Registry pursuant to the Marriage Ordinance. It is the 1st plaintiff's case that at about the same time, they went through some form of marriage ceremony purported to be in accordance with Chinese customary law. She had no children.

5. The fourth woman was Madam Tao Wai Chun, the 1st defendant. It is the case of the 1st plaintiff and the 1st defendant that the 1st defendant was taken by Mr Kwan as a concubine in August 1964 pursuant to Chinese customary law. The 1st defendant gave birth to four children by Mr Kwan, the 2nd to 5th defendants.

6. The position is therefore as follows:-

Mr Kwan Kwai Ming (deceased)

Madam Wong Woon Wan (deceased)

Madam Au Yeung King (deceased)

Madam Chui Kwok Ying the 1st plaintiff

Madam Tao Wai Chun the 1st defendant

Children of Madam Wong (in order of seniority)

Mr Kwan Chee On, also known

as John Kuan Yang the 10th defendant

Mr Kwan Yan On, Kenneth the 11th defendant

Mr Kwan Yee On the 12th defendant

Madam Kwan Sau Yung the 7th defendant

Mr Kwan Tong On, John the 9th defendant

Mr Kwan Chi On the 6th defendant

Mr Kwan Kwok On the 13th defendant

Madam Kwan Sau Wo, Winnie the 14th defendant

Madam Kwan Sau Ki the 8th defendant

Mr Kwan Tit On, Daniel the 15th defendant

Madam Kwan Sau Hang, Suzanna the 2nd plaintiff

Child of Madam Au Yeung

Mr Kwan Kin On, Norris the 16th defendant

Children of Tao Wai Chun (in order of seniority)

Madam Kwan Sau San, Susan the 2nd defendant

Madam Kwan Sau Fun, Sylvine the 3rd defendant

Mr Kwan Wai On, Lawrence the 4th defendant

Mr Kwan Lai On, Warren the 5th defendant

Previous proceedings

(1) Miscellaneous Proceedings No.2590 of 1983

7. Prior to the present proceedings, no one involved in this case had ever raised any query with regard to the status of any other person in the family. That was so not only before the death of Mr Kwan in 1983 but well after his death. In fact, since shortly after Mr Kwan's death, those parties who were then in Hong Kong held various family meetings with regard to how Mr Kwan's business should be conducted and who should be responsible for handling the estate including making an application for Letters of Administration. It was agreed, during these family meetings, that the 1st plaintiff and the 15th defendant were to be put in charge of the business and the estate, and together with the 6th and 8th defendants be responsible to apply for Letters of Administration. Disputes soon arose as to the manner in which the business was conducted and the estate was handled by the 1st plaintiff and the 15th defendant. On 15th November 1983, the 6th, 7th and 8th defendants commenced an action invoking the probate jurisdiction of the court in Miscellaneous Proceedings No.2590 of 1983 against the 1st plaintiff and 15th defendant. They sought an order for the administration of the estate of Mr Kwan to be granted to them with the necessary inquiries and accounts.

8. In that action, the 8th defendant made an affirmation in support of their application and the 6th and 7th defendants made affirmations confirming the contents thereof. In that main affirmation, the 8th defendant deposed, among other things, that Madam Wong was the first wife of Mr Kwan and had 14 children, three of whom had predeceased her; that Madam Au Yeung was a "tsip" who had predeceased Mr Kwan; that the 1st plaintiff was the surviving widow of Mr Kwan; that the 1st defendant was the surviving "tsip" and her children, namely the 2nd to the 5th defendants, were four of the surviving children of Mr Kwan.

9. In that affirmation, she said that there were a number of family gatherings after the death of her father, Mr Kwan. There were records of these meetings which were exhibited before me. She said that at those meetings, certain matters were said to have been agreed by those present although there was no discussion. Those matters which had been "agreed" were merely action or steps which had either been taken or were to be taken. The 8th defendant said that at the third meeting, the 6th defendant and herself had agreed to act as administrators together with the 1st plaintiff and 15th defendant but that at the fourth meeting, the 1st defendant expressed the desire to be an administratrix and the 6th defendant agreed at that time to stand down in her favour. She said that this was not because he was too busy but because he thought it was the correct thing to do at the 1st defendant's request. She further said that in October 1983, she and the 6th and 7th defendants came to the conclusion that the 1st plaintiff and the 15th defendant were not only trying to handle the estate of Mr Kwan in a manner which raised grave doubts in their minds, but were intermeddling with the estate in a manner likely to be contrary to the requirements of the Estate Duty Office. In particular, she raised concern about the transactions regarding the sale of certain shares and transfer of the proceeds thereof which were handled by the 1st plaintiff and 15th defendant on 25th May 1983, the day on which Mr Kwan passed away. She said that upon having taken legal advice, she felt that those transactions were rather suspicious because they could not have been authorised by Mr Kwan during the last two or three days before his death since he was then totally unconscious.

10. In view of the alleged mishandling or intermeddling by the 1st plaintiff and 15th defendant, the 8th defendant together with the 6th and 7th defendants decided to ask the court to appoint them as administrators of the estate of Mr Kwan to the exclusion of the 1st plaintiff and the 15th defendant.

11. At a hearing on 6th February 1984, the 6th, 7th and 8th defendants succeeded in obtaining an order from the Master that they be granted leave to proceed with the application for the grant of Letters of Administration. The Master also dismissed an application by the 1st plaintiff and 15th defendant to strike out the action commenced by the 6th, 7th and 8th defendants on the ground that such action was frivolous and vexatious and/or an abuse of the process of the court and that the action was also started in breach of the provisions of O76, r.2 of the Rules of Supreme Court.

12. There was an appeal to a judge against the order of the Master. On 1st March 1984, the appeal was successful and the learned judge ordered that the order of the Master was to be set aside and that all further proceedings in that action be stayed. That was the end of the first set of proceedings. Regrettably, it was not the end of the dispute but a prelude to the second set of proceedings. This time the table was turned. The 1st plaintiff, the 1st defendant and the 15th defendant took the initiative.

(2) High Court Probate Action No.1 of 1984

13. As I have mentioned, it was originally agreed at one of the family meetings that the 1st plaintiff, the 15th defendant together with the 6th and 8th defendants were to be the joint administrators of the estate. At a subsequent family meeting, the 6th defendant agreed to step down and allow the 1st defendant to take his place. Hence in this second action, the 1st plaintiff, the 1st and 15th defendants issued the proceedings as plaintiffs. The 6th, 7th and 8th defendants were named as defendants. Two of the infant children of the 1st defendant, namely the 4th and 5th defendants were also joined as defendants. The 2nd plaintiff on her own accord applied to join as another defendant. In this action, the plaintiffs sought an order from the court that they or such person as the court thought fit be granted Letters of Administration to the estate of Mr Kwan. Not all the beneficiaries to the estate were joined since some of them were overseas and had no intention to take part in the proceedings. Leave, however, was granted for notice of the proceedings to be served on those persons who were either overseas or not interested in that probate action. This was done. The result was that all the persons I have mentioned above were either parties to this probate action or had notice of it. They are also the parties to the present proceedings.

14. In the Statement of Claim filed in connection with that action, the 1st plaintiff, the 1st and 15th defendants as plaintiffs set out the relationship of all the parties with Mr Kwan. In the defence filed by the 6th, 7th and 8th defendants as defendants, the relationship of all the parties with Mr Kwan was admitted. They opposed to the grant of Letters of Administration to the 1st plaintiff, the 1st and 15th defendants on the ground that they had intermeddled with the estate. There was also a counterclaim that the 6th, 7th and 8th defendants be appointed as administrators. The 2nd plaintiff who was a defendant in the probate action made a counterclaim that she be appointed an administratrix, either solely or jointly with others. It was not clear whether this was done with a view to complicate the matter or to act as a peace-maker.

15. It was the case of the 1st plaintiff, the 1st and 15th defendants in the probate action that there was an agreement at a family meeting that they and the 8th defendant would be the administrators of the estate. After the death of Mr Kwan, they only acted with the consent of the beneficiaries and with a view to avoid any loss to the estate. They opposed to any grant of Letters of Administration to the 6th, 7th and 8th defendants on the ground that the latter three persons were not fit and proper persons to be administrators and had conflicts of interest with the estate. The 1st plaintiff and the 1st defendant also alleged that as the surviving wife and "tsip" of Mr Kwan, they had priority in obtaining Letters of Administration over the 6th, 7th and 8th defendants.

16. The action went all the way to trial but at the hearing, the parties agreed to settle and a consent order was made by the court. The main part of that order which was made on 27th June 1985 read as follows:-

"And it is ordered that Letters of Administration of the estate of the abovenamed Kwan Kai Ming (deceased) late of No.152, Nga Tsin Wai Road, Ming Yuen Court, 5th Floor, Kowloon, Hong Kong be granted to the (1st plaintiff) and the (2nd plaintiff), if in all respects entitled thereto."

17. It was hoped that this settlement would put an end to the dispute, at least for the time being if not permanently, so far as the estate which was in the name of Mr Kwan was concerned. I say this because there appeared to be other properties registered in names other than Mr Kwan which were situated in Macau. They were the subject matter of proceedings there. Those proceedings are not relevant to the main action in this case but were relied on heavily by the 6th defendant in the Third Party proceedings. I shall deal with them at a later stage.

(3) Application for a grant of Letters of Administration

18. Pursuant to the consent order referred to above, in about June 1987 the 1st and 2nd plaintiffs proceeded with an application for a grant of Letters of Administration to them in respect of the estate of Mr Kwan. In support of the application, the 1st plaintiff filed an affirmation in which she deposed that she was married to Mr Kwan in accordance with the provisions of the Marriage Ordinance in 1960. However, in her affirmation, she mentioned all the parties in the present proceedings as beneficiaries and described Madam Au Yeung King as a concubine who had predeceased Mr Kwan and the 1st defendant as a concubine of Mr Kwan who was accepted in 1964. The Probate Registry raised requisition with regard to the status of Madam Au Yeung and the 1st defendant. Correspondence ensued between solicitors for the 1st and 2nd plaintiffs and the Probate Registry regarding this requisition. The Probate Registrar, notwithstanding the written submission made by those advising the 1st and 2nd plaintiffs, was not satisfied that the 1st defendant was a lawful concubine because of the marriage between the 1st plaintiff and Mr Kwan pursuant to the Marriage Ordinance.

19. In order to proceed with the application for a grant, the 1st and 2nd plaintiffs suggested that the parties should enter into a deed of family arrangement whereby the 1st defendant and her children, that is, the 2nd to 5th defendants would be conferred the same entitlements as a "tsip" and children of Mr Kwan. This proposal was made in view of the fact that in the two previous sets of proceedings, every party seemed to have accepted the status of the 1st to 5th defendants. It was proposed that after the deed of family arrangement, the 1st and 2nd plaintiffs would amend the affirmation in support of the application for a grant by omitting the reference to the 1st to 5th defendants. This course of action was not agreeable to the 6th defendant who indicated that he did not accept the 1st defendant as the surviving "tsip" of Mr Kwan. This put the status of the 1st to 5th defendants in doubt. The 1st and 2nd plaintiffs found it necessary to take this matter to the court. Hence they commenced the present action.

Present proceedings

20. In the present proceedings, the 1st and 2nd plaintiffs sought a determination of the status of the 1st to 5th defendants. This was done with a view to clarify their status so that the 1st and 2nd plaintiffs could proceed as soon as possible with the application for Letters of Administration. They also asked for an order of the court to sanction the advancements they had made to the beneficiaries since the death of Mr Kwan. The stance of the 1st and 2nd plaintiffs was and still is that the 1st defendant is a lawful concubine of Mr Kwan and hence the 2nd to 5th defendants are the lawful children of Mr Kwan.

21. In their affirmations in opposition to the plaintiffs' application, the 6th, 7th and 9th defendants (this time not the 8th defendant) appeared to put the status of everybody, including the 1st plaintiff, in doubt. They alleged that the 1st plaintiff was not lawfully married to Mr Kwan; that the 1st defendant was not a lawful concubine and hence the 2nd to 5th defendants were not the legitimate children of Mr Kwan. They seemed to require every child of Mr Kwan to prove his or her respective entitlement as a beneficiary. In particular, they specifically alleged that the 15th defendant was not a lawful or natural son of Mr Kwan.

22. It therefore seemed that initially the lawful status of almost every living persons involved in this case was under challenge. Fortunately, I was told on the first day of the trial that this was no longer the case. The validity of the marriage between Mr Kwan and Madam Chui Kwok Ying, the 1st plaintiff, both under the Marriage Ordinance and under the Chinese customary law, is being challenged. So is the status of Madam Tao Wai Chun, the 1st defendant. As I understand it, the case relating to the 2nd to 5th defendant is not that they are not the children of the 1st defendant by Mr Kwan, but that since the 1st defendant is not a lawful concubine, her 4 children are not lawful children of Mr Kwan. Finally, the status of the 15th defendant is also challenged. The dispute regarding the status of Madam Chui, Madam Tso and her children is the subject matter of the main action and the dispute regarding the status of the 15th defendant is the subject matter of the Third Party proceedings.

23. The issues which I have to decide in the main action are whether for the purpose of the Intestates' Estates Ordinance:-

(1) The 1st plaintiff was and is the lawful wife of Mr Kwan;

(2) The 1st defendant was and is the lawful concubine of Mr Kwan; and

(3) The 2nd to 5th defendants were and are the lawful children of Mr Kwan.

24. In the present action, the parties had filed various affirmations in support of their respective cases. Pleadings were ordered to be filed. By an order of the court, their affirmations were to stand as evidence-in-chief and all deponents were subject to cross-examination. At the hearing before me, the 1st and 2nd plaintiffs, the 1st to 5th defendants, the 6th defendant and the 15th defendant were all present and/or legally represented. The 7th and 9th defendants who were previously represented by the same firm of solicitors for the 6th defendant now acted in person but did not attend. The 8th defendant who was unrepresented turned up towards the very end of the proceedings. I asked her whether she had anything to say, or wanted to put any question to the witnesses who might be recalled if she wished, or wanted to give evidence or call any witness. She declined my invitation. The other defendants did not appear and were not represented.

25. In the defence filed by solicitors who were then acting not only for the 6th defendant but also the 7th and 9th defendants, it was alleged that the marriage under the Marriage Ordinance between Mr Kwan and the 1st plaintiff was void in that Mr Kwan had at that time a lawful concubine, Madam Au Yeung King and was therefore not competent to enter into a registry marriage with the 1st plaintiff. It was also alleged that the marriage between Mr Kwan and the 1st plaintiff was not celebrated or valid as a Chinese customary marriage or a Chinese modern marriage. With regard to the status of the 1st to 5th defendants, it was alleged in the defence of the 6th, 7th and 9th defendants that the 1st defendant had never been accepted by the family of the deceased, Mr Kwan, as a concubine whether in August 1964 or at all. In the further and better particulars of the defence, it was stated that "the family of the deceased" referred to the 6th, 7th and 9th defendants. In other words, it was alleged that the 1st defendant had never been accepted by these three defendants as a concubine of Mr Kwan.

26. It was also alleged in the defence that the admission by the 6th and 7th defendants in the previous two sets of proceedings that the 1st plaintiff was the lawful widow, the 1st defendant the lawful concubine, and the 2nd to 5th defendants the lawful children of Mr Kwan was made in error since the 6th and 7th defendants were not at the time of the admission aware of the evidence now available or aware of the lack of validity of the 1st plaintiff's purported marriage with Mr Kwan. There was nothing in the defence of the 6th, 7th and 9th defendants as to why the admission made in the previous proceedings with regard to the allegation that the 1st defendant was the surviving "tsip" of Mr Kwan was made. I take it that it was the case of the 6th, 7th and 9th defendants that if the 1st plaintiff was not the lawful widow of Mr Kwan, there could not be any lawful concubine since there was no one to accept such a concubine and the three of them had never accepted her. Anyway, there was no explanation forthcoming from the 6th and 7th defendants as to why they admitted in the previous set of proceedings that the 1st defendant was the lawful concubine and her children by Mr Kwan were lawful children even though they had never accepted them.

Estoppel

27. It was the plaintiffs' contention that the 6th and 7th (and also the 8th) defendants in the present proceedings were barred or estopped from disputing the status of the 1st plaintiff, the 1st defendant and her children, the 2nd to 5th defendants. The first ground relied upon by the plaintiffs was that in Probate Action No.1 of 1984, these defendants did not raise any issue regarding the status of the 1st plaintiff and that of the 1st to 5th defendants. It was submitted that in that action, the 1st plaintiff and the 1st defendant sought a grant of Letters of Administration to them as wife and concubine of Mr Kwan. The 6th, 7th and 8th defendants in the Probate Action did not dispute that the 1st plaintiff was the lawful widow and the 1st defendant the lawful concubine of Mr Kwan, although this would have been open to them in that action. It was further pointed out that these 3 defendants not only did not raise issue in respect of such status, they even expressly admitted that the 1st plaintiff was the lawful widow and the 1st defendant was the lawful concubine. Counsel relied on the case of Yat Tung Investment Company Limited v. Dao Heng Bank Limited [1975] AC 581.

28. The second ground relied upon by the plaintiffs was that these 3 defendants were parties to the Consent Order made in settlement of the Probate Action. It was argued that by consenting that the 1st plaintiff could apply for Letters of Administration, the 6th, 7th and 8th defendants had accepted that she was the lawful widow of Mr Kwan and by agreeing that the 1st defendant and her children were beneficiaries, they had also accepted that the 1st defendant was the lawful concubine of Mr Kwan. Counsel submitted that the inclusion of the words "if entitled thereto" in the Consent Order did not have the effect of reserving to the parties the right to raise any issues which could be raised and properly raised in the Probate Action. It was pointed out that these words within quotation were included pursuant to the Practice Direction in England set out at [1972]1 WLR 1215 at 1217C. Counsel argued that these words were there to acknowledge the court's discretion in the choice of the administrator. They also appeared in Atkin's Court Form at page 151.

29. The third ground relied upon by the plaintiffs for their contention was that these defendants had, for all these years, proceeded with their affairs as though the 1st plaintiff was the tin fong wife and the 1st defendant was the lawful concubine of Mr Kwan. Counsel relied on the conduct of these defendants in accepting the status of these two persons on numerous occasions, such as family gatherings during the lifetime of Mr Kwan, family meetings after the death of Mr Kwan and the admissions by these 3 defendants in the previous proceedings. It was submitted that it was now inequitable to allow these defendants to deny the relationship Mr Kwan had with the 1st plaintiff and the 1st defendant.

30. Counsel for the 6th defendant argued that whether a person's status had been accepted by others was irrelevant to the issue of estoppel because status could not be conferred by consent or acceptance. Whether a person was or was not a lawful wife or concubine of Mr Kwan was, counsel submitted, a matter of law applied to the facts as found by the court. Counsel argued that there could be no estoppel raised by the affirmations made by the 6th, 7th and 8th defendants in the first set of proceedings. In their affirmations, it was only stated that according to the best of his or her information and belief, the 1st plaintiff and the 1st defendant were the lawful wife and concubine of Mr Kwan. Such information or belief could not confer any status on any person. There was no adjudication on status in that set of proceedings. There was no reliance on such affirmations by any party and no prejudice had been suffered by any party as a result of any such reliance.

31. Counsel for the 6th defendant also submitted that there was no estoppel raised by the Consent Order in the Probate Action. First, that Order was not made as a result of a trial after the court had heard evidence. It was the result of a settlement or compromise among the parties. There was no adjudication or decision by the court. Second, the Consent Order only indicated that the parties thereto agreed that the 1st and the 2nd plaintiffs could apply for administration and that the other parties would not. Further, the parties only agreed that the 1st plaintiff would be appointed as an administratrix "if in all respects entitled thereto". In other words, their consent was subject to her entitlement to be appointed as such. The parties did not purport to exercise the powers of the court in making an appointment of the 1st plaintiff if the 1st plaintiff was herself not so entitled. It was submitted that in any event, the 9th defendant did not take part in those proceedings and did not consent to the making of that Order. He was, therefore, not estopped by the Consent Order.

32. Counsel for the 6th defendant further argued that he was not estopped under the Yat Tung principle. It was argued that the court should not shut out the parties except after a scrupulous examination of all the circumstances. That principle should not apply to matters which did not go to the root of the matter before the court. The wider concept of issue estoppel was essentially concerned with preventing an abuse of the process of the court. In the previous proceedings, the parties were concerned over whether Mr Kwan's assets should be dealt with one way or another and how they should deal with them. The relationship between the parties and Mr Kwan was pleaded in the Statement of Claim in the previous proceedings only as a matter of introduction. As a result, the admission made by the 6th defendant (as well as the 7th and 8th defendants) was merely a formal admission. In any event, it was the Probate Registrar who had rejected the 1st defendant's claim as a concubine. It was urged upon me that the 6th defendant was not bound by any estoppel.

33. As far as Mr Kwan's family were concerned, everyone within the family was aware that the 1st plaintiff had gone through some marriage ceremony with Mr Kwan and that there had been a celebration on that occasion. Similarly everyone was aware that there was some sort of ceremony at the time when the 1st defendant was introduced into the family. Legal niceties apart, all family members had, through the years, come to regard the 1st plaintiff as the spouse of Mr Kwan and the 1st defendant as his concubine. As for the 6th defendant, he was aware that the 1st plaintiff and Mr Kwan had at least gone to the Marriage Registry and purported to go through a marriage ceremony there. He must also be aware that Mr Kwan intended to take the 1st defendant as a concubine. Like it or not, these were facts which he and indeed everyone within the family had to live with. In other words, there could be no mistake as to the fact that the marriage ceremony had taken place and that the 1st defendant was taken as a concubine.

34. Based on these facts, everyone just assumed that the marriage between the 1st plaintiff and Mr Kwan was valid and that the 1st defendant was a lawful concubine. It had never occurred to anyone at any time that the status of the 1st plaintiff and the 1st defendant as a lawful surviving spouse and concubine of Mr Kwan would be put in doubt. There was therefore no objection to the 1st plaintiff and the 1st defendant as the spouse and concubine of Mr Kwan to be two of the administrators during the family meetings after Mr Kwan's death. In the first set of proceedings, MP No.2590 of 1983, the 6th defendant (together with the 7th and 8th defendants) did not want the 1st plaintiff to be one of the administrators. The reason was not because they thought at that time that the 1st plaintiff was not a lawful spouse of Mr Kwan but because they thought they would be more suitable administrators. The main dispute then was whether the 1st plaintiff was considered fit to be an administratrix in view of what she had allegedly done in relation to the estate. Again, in the second set of proceedings, High Court Probate Action No.1 of 1984, the main issue was whether the 1st plaintiff and the 1st and 15th defendants were fit to be administrators of the estate of Mr Kwan. The objection raised by the 6th defendant (together with the 7th and 8th defendants) was that these three persons were not suitable because they had intermeddled with the estate. This second set of proceedings was, in fact, over the same dispute but in a different setting. It was therefore not surprising that the 6th, 7th and 8th defendants admitted, for the purpose of those proceedings, the relationships of these persons with Mr Kwan. They were not facts which were in issue then.

35. It is difficult to say whether the relationship of the 1st plaintiff or the 1st defendant with Mr Kwan did or did not go to "the root of the matter" raised in the first two sets of proceedings. On the one hand, it can be argued that the matters in dispute in the first two sets of proceedings did not touch on the validity of the marriage with the 1st plaintiff and the union of concubinage with the 1st defendant which did not go to the root of the matters then before the court. On the other hand, taking a broader view of the matter, the disputes involved a determination of whether the 1st plaintiff and the 1st defendant were fit and proper persons to be the administratrices of the estate. This would arguably include eligibility as well as suitability.

36. It is correct to say that both in the first as well as the second set of proceedings, the 6th defendant, in challenging whether the 1st plaintiff and the 1st defendant were fit and proper to be administratrices of the estate, could have relied on the additional ground that the 1st plaintiff was not the lawful widow of Mr Kwan and/or the 1st defendant was not a lawful concubine. It would seem, therefore, that the status of the 1st plaintiff and the 1st defendant were issues which could and should have been raised in either the first or second set of proceedings between the parties. In the wider sense, this case falls within the ambit of the Yat Tung principle. An oversight or a mistake on the part of the 6th defendant and indeed all the parties involved as to the validity of the marriage and the union of concubinage in question is, in my view, not a good reason for failing to take these issues earlier.

37. However, that is not the crucial consideration. The most material consideration is whether the raising of these issues now in the present proceedings can be regarded as an abuse of process of the court. The Privy Council in the Yat Tung case said with regard to this principle:

"... There is a wider sense in which the doctrine may be appealed to, so that it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings." [1975] AC 581 at 590.

The Privy Council in Brisbane City Counsel v. Attorney General [1978]3 WLR 299 further explained the Yat Tung principle by adding :

"This reference to 'abuse of process' had previously been made in Greenhalgh v. Mellard [1947]2 All ER 255 per Somervell, L.J. and their Lordships endorsed it. This is the true basis of the doctrine and it ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation." (at page 308)

The House of Lords in Arnold v. Nat West Bank plc [1991]2 AC 93 appeared to take a similar view at page 110:

"Estoppel per rem judicatum, whether cause of action estoppel or issue estoppel, is essentially concerned with preventing abuse of process."

38. In the present case, the first hint that the marriage between the 1st plaintiff and Mr Kwan (and hence the union of concubinage with the 1st defendant) could be put in doubt arose from a requisition raised by the Probate Registry when the 1st plaintiff, together with the 2nd plaintiff, applied for a grant of Letters of Administration. The Probate Registry was concerned that if the marriage between the 1st plaintiff and Mr Kwan was a valid registry marriage, there was no question of Mr Kwan taking the 1st defendant as a concubine. Even if all the parties, including the 6th, 7th and 8th defendants were to accept the status of the 1st plaintiff and that of the 1st defendant, it did not necessarily follow that the Probate Registry would grant a Letter of Administration to either of these two persons. The main purpose of initiating the present set of proceedings was to determine the status of the 1st plaintiff and that of the 1st defendant for the purpose of applying for a grant. In my view, it is true that the present proceedings could have been avoided by a family arrangement as proposed by the plaintiffs and the 6th defendant's challenge on the status of the 1st plaintiff and the 1st defendant was inconsistent with his acceptance, whether express or by conduct, of them throughout these years. However, the validity of the marriage and the union of concubinage would have to be canvassed in any event in the present proceedings and I do not think that any party involved could be accused of abusing the process of the court by putting these issues to the test. No evidence had been adduced in the previous proceedings on these issues. They have never been determined by the court.

39. Another important consideration is that while the purpose for the present proceedings may be the determination of who should be entitled to a grant of Letters of Administration, it is in effect the status or legitimacy of several adult persons which fall to be decided by the court. I do not think the court should be prohibited by this principle of estoppel and ignore these important issues simply on the ground that none of the parties involved in the previous proceedings could have raised them but had not done so because he or she had never applied his or her mind to them. In my view, if the status or legitimacy of the 1st plaintiff, the 1st defendant and her children is in doubt, it is only proper for the court to make a determination thereon.

40. The Consent Order was made as a result of settlement. The issues had not been really litigated in those proceedings. As the learned author in the Doctrine of Res Judicata by Bower and Turner said at p.40:

"Whether there can be a judgment in rem by consent, at least in the absence of evidence properly adduced, disposing of the matters in dispute to the satisfaction of the court, may be doubted; and in any case where the case has purported to give such a judgment, it may be doubted whether it will be binding against the world, though the parties before the court may be estopped thereby inter se."

41. Further, I do not think the Consent Order in the terms as it was made would prevent any party involved in these proceedings from taking issue on the status of the 1st plaintiff and the 1st defendant now. It was made with the aim that the 1st and 2nd plaintiffs could apply for a grant of Letters of Administration instead of any one or more of the other parties putting in similar applications. But the order also provided that Letters of Administration would be granted to the 1st and the 2nd plaintiffs "if in all respects entitled thereto". In my view, this is not merely a matter of form. It is also a matter of substance. It gives the court a discretion to grant Letters of Administration to a person who is legally entitled to apply for and to obtain the same or to refuse an application for a grant to a person who is not legally entitled to take such a grant. Although the parties, when they settled and consented to that order, did not have in mind the entitlement of the 1st plaintiff to obtain a grant based on her status but simply assumed that she was entitled, the terms of the Order did not confer any right on the 1st plaintiff to obtain such a grant if she was legally not entitled to do so.

42. For the reasons which I have given above, I have come to the conclusion that the 6th, 7th and 8th defendants are not estopped from raising the issues relating to the status of the 1st plaintiff or the 1st defendant and her children.

Marriage to the 1st plaintiff

43. Before I consider Mr Kwan's marriage with the 1st plaintiff, it is necessary to examine his marital status at the relevant time. I shall therefore start with his relationship with Madam Wong and Madam Au Yeung.

(1) Madam Wong and Madam Au Yeung

44. There is no direct evidence regarding the marriage between Mr Kwan and Madam Wong Woon Wan. None of the parties in this action would have personal knowledge of that marriage. Nor had the relatives of Mr Kwan who gave evidence any such knowledge. This is quite understandable. It is generally accepted by family members and relatives alike that Mr Kwan was married to Madam Wong in about 1923, that is, over 60 years ago. None of the witnesses in this case was expected to have any recollection of such marriage. It is also generally believed that the couple were married according to Chinese rites and customs, either in Canton or in Hong Kong.

45. Mr Kwan and Madam Wong had 11 children (discounting the 3 who had died); some were born in China, some in Hong Kong and some in Manila. In about 1938, the 6th, 7th and 12th defendants were taken to Shanghai to live with Mr Kwan's father. At a later stage, Mr Kwan, Madam Wong and the other children went to Manila. They stayed there until the end of the war and returned to Hong Kong. The 6th, 7th and 12th defendants had already come back from Shanghai. They then joined Mr Kwan. At first, the whole family lived in some premises at Woo Sung Street in Yaumatei. They then moved to No.178, Junction Road in Kowloon City. Subsequently they moved to No.28 A-B, Grampian Road in Kowloon and finally they settled down at No.152, Nga Tsin Wai Road in Kowloon. There was a time when they had to move out between 1978 to 1980 during which period the building at that address was reconstructed into a 6-storey building. This was the place where Mr Kwan lived until he passed away in 1983.

46. It is also not seriously disputed by the parties that in 1948, Mr Kwan took Madam Au Yeung King as a concubine. There was a suggestion that the taking of Madam Au Yeung as a concubine was the idea of Madam Wong. Anyway, it seems that Madam Wong's consent was obtained before a matchmaker found Madam Au Yeung for Mr Kwan. There was a yap kung ceremony in the presence of family members and relatives. Madam Au Yeung and Mr Kwan worshipped the ancestral shrines and she also served tea to Madam Wong. Madam Au Yeung gave birth to a son who is the 16th defendant. At the beginning, she lived apart from Mr Kwan but at some stage when Madam Wong was not feeling too well in 1959, Madam Au Yeung came to live in the matrimonial home to look after Madam Wong. Madam Wong passed away on 23rd March 1959.

(2) Events leading to the marriage

47. Mr Kwan was not only a very successful businessman. He was at one stage also a director of the Tung Wah Group of Hospitals which was a well-known charitable organisation. He used to go out to socialise. Madam Wong came from a wealthy family in Hong Kong. She was also educated and went out with him to various social gatherings. On the other hand, Madam Au Yeung was not well educated. Hence, in 1960 after the death of Madam Wong, Mr Kwan wanted to marry again so that there could be someone who could look after the family for him and go out with him on social occasions. It was, however, believed that during that time, he had a woman with whom he was cohabiting outside. This later turned out to be the 1st defendant. Madam Au Yeung and her son, the 16th defendant had by then returned to live at Hoi King Mansion, Chatham Road in Tsimshatsui. In about 1968, they moved to stay with Mr Kwan at Nga Tsin Wai Road when her flat at Hoi King Mansion was sold. Madam Au Yeung had unfortunately contracted cancer. She and her son lived on a separate floor until her death in 1970.

48. The 1st plaintiff was born in Guangzhou. She came to Hong Kong after the war. She had received education in the western style both in Hong Kong and China, having studied in Truelight College and the Chung Shan University. In 1959, she was a spinster.

49. The 1st plaintiff was the sister-in-law of Mrs Chui Hei Man who was a friend of the wife of Dr. Tsui Yuen Hai. Mrs Tsui Yuen Hai was the sixth younger sister of Mr Kwan. They were aware that Mr Kwan's wife had just passed away and that he was thinking of getting a wife who could look after the family and help him socialize. They arranged to introduce the 1st plaintiff to Mr Kwan. Under their arrangement, the 1st plaintiff and Mr Kwan met at a dinner party.

50. According to the 1st plaintiff, Mr Kwan then continuously dated her, bringing her to dinners, film shows, football matches and joy rides. He also invited her to join the functions of the directors of the Tung Wah Group of Hospitals such as dinner parties and mahjong games. He introduced her to his fellow directors. After they had dated for several months, in March or April 1960, Mr Kwan made a proposal to marry the 1st plaintiff. He told her that he wanted to have a wife to help him in his work and to look after his household. He had a big family and he could not cope with it on his own. He also told her that he had spoken to his children about this proposed marriage and he assured the 1st plaintiff that she could maintain a harmonious relationship with his children who were mostly grown up. The 1st plaintiff knew that he had a concubine called Madam Au Yeung King. At first, she was reluctant to marry Mr Kwan because of the existence of the concubine. However, Mr Kwan told her that Madam Au Yeung was taken as a concubine to serve him as his deceased wife Madam Wong had been sick for a long time and could not attend to the household chores. He also told her that Madam Au Yeung was not well educated and could not help him very much. Upon his persuasion, the 1st plaintiff agreed to marry him.

(3) Events prior to wedding day

51. The 1st plaintiff said that although she and Mr Kwan had agreed to marry, it was their families who made arrangements for the marriage. She was told by others as to what she should do to get married. She was concerned to comply with all the procedures and take all the necessary steps. She just listened to what people said and performed all the necessary rites. She went through both Western and Chinese style of ceremony. As far as the Western style ceremony was concerned, she and Mr Kwan went to the Marriage Registry which was then at the Old Supreme Court Building in Central. They registered their marriage there and were issued a marriage certificate. That was done on 27th May 1960.

52. As far as the Chinese style ceremony was concerned, she said that the following happened.

53. After she had agreed to marry Mr Kwan, Mrs Tsui (the 6th younger sister of Mr Kwan and the wife of Dr Tsui Yuen Hai) who had introduced her to Mr Kwan then acted as a go-between. Mrs Tsui went to the 1st plaintiff's maiden home and spoke to the 1st plaintiff's mother. Mrs Tsui initiated the proposal of marriage and asked for the particulars of her birthday, including the year, month, date and hour. Those particulars made up the "eight characters" of the 1st plaintiff. Mrs Tsui left with those particulars.

54. Some time after that, Mrs Tsui paid another visit to the 1st plaintiff's maiden home. She told the 1st plaintiff's mother that she had consulted the elders of Mr Kwan's family and found that Mr Kwan's "eight characters" were compatible with those of the 1st plaintiff so that Mr Kwan and the 1st plaintiff would lead a harmonious and prosperous married life. Then Mrs Tsui consulted the 1st plaintiff's mother on the dates for the betrothal and the wedding. A date was chosen for the pre-nuptial ceremony of presenting the betrothal gifts to the family of the 1st plaintiff. This was fixed to be a few days before the wedding day which was a good date. The wedding day was in fact chosen by Mr Kwan's family and then suggested to the 1st plaintiff's mother. It was found to be acceptable. That was 27th May 1960. The 1st plaintiff could not recall the date according to the Chinese reckoning.

55. At the pre-nuptial ceremony for the presentation of betrothal gifts, a maid-servant was sent by Mr Kwan's family to attend the 1st plaintiff's maiden home, bringing with her gifts such as jewellery, golden ornaments, cash in the form of "laisee" (or lucky money) and wedding cakes. Later on the same day, the 1st plaintiff's family transported some of her belongings and furniture for use after the marriage to Mr Kwan's home at No.152, Ngai Tsin Wai Road. During the betrothal, the gifts were placed in gift boxes and there were pieces of red paper listing out all the gifts. However, the 1st plaintiff said she could not produce any of these pieces of red paper because it was such a long time ago.

56. Madam Annie Fung was the sister-in-law of the 1st plaintiff. She was the wife of Mr Chui Hay Man the brother of the 1st plaintiff. She said that she and her husband lived together with the 1st plaintiff and her mother before the 1st plaintiff was married to Mr Kwan. Madam Fung was a friend of Mrs Tsui (the 6th younger sister of Mr Kwan). Through their joint effort, the 1st plaintiff was introduced to Mr Kwan. She confirmed that there were the visits by Mrs Tsui to the 1st plaintiff's maiden home for the purposes of proposing marriage and the betrothal.

(4) The wedding day

57. On the wedding day, Mr Kwan sent his driver and a maid-servant carrying a box of dried fruits and candies to the 1st plaintiff's maiden home. The 1st plaintiff then travelled in the car driven by Mr Kwan's driver and went to the Honeymoon Bridal Salon. She had earlier arranged with Mr Kwan to meet there for the taking of wedding photographs. In the salon, the 1st plaintiff changed into a European white wedding gown. Mr Kwan later joined her there and they took some wedding photographs. Mr Kwan was dressed in a Western style suit. A photograph was produced before me which showed a large photograph placed on the wall of the matrimonial home. That large photograph depicted Mr Kwan in Western style clothes and the 1st plaintiff in white Western style wedding gown. It was presumably one of those taken on the wedding day at the salon. After the taking of the photographs, Mr Kwan and the 1st plaintiff then proceeded to the Marriage Registry at the Old Supreme Court Building. There they underwent a marriage ceremony. They signed on a marriage certificate. It was also witnessed by Mr Kwan's 6th aunt and the 1st plaintiff's mother. After the ceremony, the couple returned to No.152, Ngai Tsin Wai Road which was to be their matrimonial home.

58. The 1st plaintiff said that what happened then was this. Upon arrival, the 1st plaintiff changed into the traditional Chinese bridal dress. Mr Kwan also changed into the Chinese style of cheung sam. The two performed certain ceremonies at home. They first kowtowed to heaven and earth. They then worshipped the family shrines of Mr Kwan's ancestors. The 1st plaintiff was given a pair of golden bangles which was to be regarded as a wedding gift from Mr Kwan's ancestors. She then served tea to all the elders of Mr Kwan's family. This included the 6th aunt who witnessed the marriage ceremony at the Marriage Registry and the mother of Mr Kwan Wan Hing who was Mr Kwan's cousin (Mr Kwan Wan Hing's and Mr Kwan's respective fathers being brothers). Madam Au Yeung was also present. She served tea to the 1st plaintiff and addressed her as "elder sister". The younger members of Mr Kwan's family who were present at the ceremonies were also asked to come forward to greet the 1st plaintiff. They were directed by Mr Kwan and the elders of the family to address the 1st plaintiff as "Ah Sum" which means aunt. According to the custom of the native place of Mr Kwan, children would address their mother as "Ka Sum", that is, "family aunt" and their father as "Ka Suk", that is, "family uncle".

59. There was a wedding banquet held at home in the evening. There were altogether about ten tables laid on the ground floor of the house and the garden. Only family relatives and close friends were invited. During the banquet, the main door of the house was opened for welcoming relatives and friends. During the banquet, Mr Kwan introduced the 1st plaintiff to his relatives and friends as his tin fong wife. They also gave toast table by table. There was no invitation card for the banquet. The 1st plaintiff explained that there were two reasons for not doing so. First, one of Mr Kwan's sons was about to get married in a few months time. Second, Mr Kwan was a prominent person in society and if invitation cards were issued and some were omitted, this would not be very polite. Hence only family relatives and very close friends were invited to the banquet held at home. In fact, several days later another banquet was held at the Lai Kung Restaurant for the 1st plaintiff's maiden family, relatives and friends. There was yet another banquet held by Mr Kwan for his other friends including the directors of the Tung Wah Group of Hospitals on a later date. On each of these other occasions, Mr Kwan introduced the 1st plaintiff to his friends and the couple also went round table by table to give toast.

60. Madam Annie Fung also went with the 1st plaintiff to the Marriage Registry and thereafter attended the dinner party held at Mr Kwan's home in Ngai Tsin Wai Road. She was able to confirm what had happened there.

61. After the wedding banquet, Mr Kwan and the 1st plaintiff went to spend the night in Mr Kwan's villa in Yuen Long. They stayed there for two days before returning to the matrimonial home in Ngai Tsin Wai Road.

62. The marriage ceremony and wedding banquet held at Mr Kwan's home in Ngai Tsin Wai Road was organised by Mrs Tsui. In fact, the 6th defendant was also asked by Mr Kwan to help organise and to take charge of the accounts. There was a sheet of paper which resembled a simple account of the expenses incurred for the purpose of the marriage and the banquet. This was subsequently discovered by the 1st plaintiff and was produced before me. I shall come back to this sheet of paper at a later stage.

63. According to the 1st plaintiff, about two to three days after the wedding, she went to Madam Wong's maiden home at Hoi King Mansion. That was the home of Madam Wong's younger brother and his family. She put on her traditional Chinese bridal dress and worshipped Madam Wong's family ancestral shrines. She also served tea to the elders of Madam Wong's family and was introduced to her family members by Madam Wong's younger brother and his wife. She was described as "Ah Ku" meaning younger sister who was to fill the place of Madam Wong. A wedding feast was held at Hoi King Mansion and was attended by the family members and friends of Madam Wong.

(5) 1st plaintiff's participation in family affairs

64. After the marriage, the 1st plaintiff played the role of the female head of the family. She was accepted by family members, relatives and friends as the tin fong wife of Mr Kwan. She took part in and attended various family functions and gatherings during festival times. This included a wedding party which was held a few months later for the 11th defendant who was to get married in the United States. The banquet was held at a restaurant attended by friends and relatives. Later, there were also the weddings of the 9th defendant in Australia, the 12th defendant in China and the 6th and 13th defendants in Hong Kong. Wedding banquets were held at the matrimonial home in Ngai Tsin Wai Road. Finally, there were the weddings of the 15th, the 7th, the 14th and the 8th defendants. The 1st plaintiff took part in all these. She produced before me some of the invitation cards in respect of these wedding banquets. She was either described or addressed as the mother or the family aunt.

65. During festivals, Chinese New Year, or the birthday parties of Mr Kwan, when the family members and relatives gathered together at the matrimonial home in Ngai Tsin Wai Road, the 1st plaintiff would also worship ancestors and serve tea on the family elders. She said that on those occasions, she need not be on her knees when she served tea because that was only serving tea out of respect and not as a daughter-in-law for the elders.

(6) Knowledge of the 2nd plaintiff and 6th defendant

66. At the time of his marriage to the 1st plaintiff, Mr Kwan's children by Madam Wong were mostly adults or already in high school. Those who were then in Hong Kong should be aware of their father's marriage to the 1st plaintiff. Only two of them gave evidence before me.

67. The 2nd plaintiff was the youngest child of Mr Kwan by Madam Wong. She remembered that there was an incident before her father's marriage to the 1st plaintiff. Some time after her mother's death, the children heard the rumour that their father had cohabited with a mistress outside. She was worried that the woman would turn out to be indecent and the family fortune might be lost. She discussed this with her brothers and sisters. On one occasion, she went with them to talk with their father. Mr Kwan admitted that he had a mistress outside but said that he wanted to be responsible for what he had done and he had decided not to leave the woman. There was mention that her father referred to some children by that woman. During the conversation, when he became angry with them, they left. I think it is clear that the mistress she was referring to was the 1st defendant and not the 1st plaintiff. Mr Kwan only came to know the 1st plaintiff after Madam Wong's death and he had dated the 1st plaintiff openly.

68. The 2nd plaintiff was then living with Mr Kwan in the Ngai Tsin Wai Road premises. On 27th May 1960, she did not attend the marriage ceremony at the Marriage Registry. She said that her father was very concerned about his children's studies and had told them to attend school on that day. She returned home after school at about 5 p.m. She had mixed feelings about her father's marriage to the 1st plaintiff. On the one hand, this reminded her of her mother who had passed away and she missed her. On the other hand, it was a happy occasion for the family. She was also concerned that there should be someone to look after the household and to take care of Mr Kwan who was busy with his work.

69. According to the 2nd plaintiff, the events on the evening of 27th May 1960 were as follows. She saw her father and the 1st plaintiff at home. They changed into Chinese style clothings, her father in cheung sam and the 1st plaintiff in Chinese traditional bridal gown. They paid respects to the ancestors. They served tea to the family elders. She also saw her father's concubine Madam Au Yeung there, serving tea to the 1st plaintiff. The 2nd plaintiff and the other brothers and sisters were at the balcony watching what was going on and had fun. Mr Kwan then told them to go inside and he introduced them to the 1st plaintiff one by one. He asked them to call the 1st plaintiff "Ah Sum". He also told them that in future the 1st plaintiff would take the place of their mother. The 6th, 8th, 9th, 13th, the 15th defendants were also there. Later that evening, there was the banquet.

70. The 2nd plaintiff said that her father was a very traditional person and very superstitious. He was a very strict father and the children were scared of him. He would not like to see people wearing black on that happy occasion and they would not dare to do so. She did not see anyone wearing mourning clothes on that evening.

71. The 6th defendant was one of the sons of Mr Kwan by Madam Wong. When he was very young, he was taken together with two other children to Shanghai to be looked after by Mr Kwan's father. This was apparently because Mr Kwan and the other members of the family had to go to Manila. He returned to Hong Kong after the war in 1951 and stayed with his father. In 1960, he was helping his father in his business. He was also asked by his father to be the treasurer for the household after the death of Madam Wong.

72. The 6th defendant said there was an occasion which was a few days before his father's marriage to the 1st plaintiff when he went to the Yuen Long Villa for a swim and while he was there, his father and the 1st plaintiff came. His father introduced the 1st plaintiff to him and asked him to call this woman auntie. It was only subsequently that his father told him that he would be marrying this woman. He said that after he and his brothers and sisters had learned that their father had a woman outside, they were not happy about it. They could not accept this because their mother had helped him for so many years and contributed to his success. They did not know who the woman was. It was the 2nd plaintiff who felt most strongly about this and they finally had the opportunity of talking to their father.

73. The 6th defendant told us that his mother's maiden family were also not very pleased about his father's re-marriage. He said that he and his sister, the 7th defendant, went to Taipo to visit the home of his eighth granduncle, that is the uncle of his mother, and learned that he had shown very strong objection to Mr Kwan's marriage. During the evidence of the 6th defendant, it turned out however that this granduncle had passed away in as early as 1956. He explained that when he went to the Taipo home, he saw the concubine of the granduncle and another man talking. So he took that man to be his eighth granduncle.

74. The 6th defendant said that while he knew his father and the 1st plaintiff went to the Marriage Registry to get married, he believed that Mr Kwan did not have the intention to enter into a Chinese customary marriage with the 1st plaintiff. His account of the events was as follows.

75. On 27th May 1960, Mr Kwan left home as usual at 1 p.m. He did not even bother to receive the 1st plaintiff from her maiden home but merely sent a driver to take her to a studio to take photographs. After the marriage ceremony at the Marriage Registry, his father then went to attend a business meeting at the office of Messrs Lo & Lo in Central at 3 p.m. He was asked to go with him. After the business meeting, his father wanted to go back to the office at China Building and told him to go home first. He was not happy that his father got married so soon after the death of his mother. So he deliberately went home late. He said that since his brothers and sisters were also not pleased about his father's re-marriage, they too had deliberately returned home late on that day.

76. When he came home, his father had not returned yet. He himself went straight into his own room on the ground floor until dinner time. He was not able to tell what happened on the 1st floor. Nor was he present at the various ceremonies alleged to have taken place in the evening at home. However, he did not think that these ceremonies had taken place because he saw his father coming home in his car just half an hour before dinner began. He did not believe that his father would have gone through all the ceremonies which the 1st plaintiff said had taken place within such a short time. While he said that he did not see any worshipping of ancestors at home, the 6th defendant admitted that there was a room on the 1st floor for placing the ancestral shrines and that after returning home, his father went up to the 1st floor. He said that even if those ceremonies had in fact taken place, his father must have considered the ceremonies not important enough to ask him to attend. Those ceremonies, if they did take place, took place just to keep with the tradition or for superstitious beliefs. All that time, he stayed on the ground floor while his father was on the first floor. He did not see his father and the 1st plaintiff worshipping heaven and earth or their ancestors or serving tea to the family elders. He said that worshipping ancestors at home was very common and took place at least twice a month.

77. The 6th defendant also said that it was agreed by the 2nd plaintiff, he and his brothers and sisters that they would wear mourning clothes on that day in order to show that there was nothing to celebrate. Hence they wore mourning dresses of black and white. In fact when his father went to the Marriage Registry, he was in ordinary Western style clothings. He said the atmosphere was gloomy. The 1st plaintiff was not introduced by his father to anyone as his tin fong wife at the dinner.

78. The 6th defendant said that his father did not attach very much significance or importance to this marriage. That could be shown by his father going to the solicitor's office and later to his own office on the wedding day. Further, his father only treated the celebration on that occasion as that for an ordinary worshipping of ancestors. He said that his father had earlier told him of the intended marriage with the 1st plaintiff and wanted to throw a dinner party that evening. He asked his father how much his father wished to spend on the party. He was, however, told that he could treat that as an ordinary dinner for the worshipping of ancestors. So the 6th defendant gave $1,500 to his 6th aunt, that is, Mrs Tsui Yuen Hai, who was to organise the dinner for the occasion. He said that his father used to entertain a lot and throw lavish dinner parties from time to time, at least two banquets a month. The more important parties were held in a restaurant in Central. Parties at home with ten tables or more were a regular occurrence. The amount spent on each dinner party at home depended on how important his father considered the occasion. Chinese New Year and birthday parties were considered by his father to be the most important annual events and there would be no limit on the amount that could be spent. The next important event would be the Mid-Autumn Festival or the Winter Solstice for which he would spend $5,000 each time for dinner parties. Parties for the worshipping of ancestors would be the lowest in line and his father would usually spend only $1,500.

79. The 6th defendant said that he had never greeted the 1st plaintiff. After his father's death, he was on one occasion told by a solicitor, Miss Yu, that the 1st plaintiff as surviving widow would be entitled to one half of the estate and that the 1st defendant was the concubine. He said he did not know the law but his own lawyers had agreed with what Miss Yu, the solicitor, had said. With regard to the family meetings after his father's death, he said that there was in fact no discussion at those meetings. It was the 15th defendant who did the talking. After the meetings, it was however put down that there was a discussion and agreement on those matters.

(6) Findings on the facts

80. A large part of the evidence was not controversial and/or not contradicted except what happened on the wedding day. Having heard the evidence, I find the position to be as follows.

81. Mr Kwan and Madam Wong were lawfully married under Chinese law and custom in about 1923. With the acquiescence of Madam Wong, he took Madam Au Yeung as a concubine in 1948. There was a yap kong ceremony and Madam Au Yeung was accepted and recognised by Madam Wong and the family of Mr Kwan as his lawful concubine.

82. Before her death in March 1959, Madam Wong had been taken ill. It was at about this time that Mr Kwan came to know the 1st defendant, but he had not started to cohabit with the 1st defendant yet. After the death of Madam Wong, Mr Kwan was also anxious to get a tin fong wife to take care of the household and to help him in his social life. His 6th younger sister, who was the wife of Dr Tsui Yuen Hoi and her friend Madam Annie Fung, who was the sister-in-law of the 1st plaintiff, were aware of his intention. Hence they introduced the 1st plaintiff to Mr Kwan. The 1st plaintiff suited him and he began courting her. However, since about June 1959, Mr Kwan had commenced cohabitation with the 1st defendant. In May or June 1960, he did not want to terminate this relationship. It might be due partly to the fact that the 1st defendant was then pregnant with her first child who was later born in early February 1961. His children came to hear of his association with a woman. They did not know who that person was. They were not very happy about that. They had a discussion with Mr Kwan but he was not willing to break up such relationship.

83. In late May 1960, Mr Kwan proposed to the 1st plaintiff. They intended to be lawfully married. They wanted to have a marriage which was not only recognised by his family, relatives and friends but which would also confer the status of a tin fong wife on the 1st plaintiff. She was to take the place of Madam Wong as the female head of the household and in any event, to have a status which was higher than that of Madam Au Yeung. This, in my view, would be the reason for Mr Kwan and the 1st plaintiff going through both the Western style and Chinese style of marriage.

84. As far as the children were concerned, most of them were grown up. One could not expect them to be entirely happy about their father's re-marriage. Some, including the 6th defendant, would find this more objectionable than the others. However, that of course was a matter entirely for Mr Kwan. The children were not in any position to object. Their father was a traditional and conservative person. He would also be rather dominating. The children might have discussed with their father about his informal association with a woman outside but certainly they would not like to incur his wrath by challenging his right to take a tin fong wife. I do not think that any of the children would dare to behave in any way which would make their father angry. I do not believe that any of them had in fact put on any mourning clothes on his wedding day.

85. That was Mr Kwan's second marriage; he was getting a tin fong wife. One would not expect him to have an elaborate ceremony as if he was marrying for the first time or taking a kit fat wife. It would not be unreasonable for him not to have a big celebration on that occasion and only have a celebration at home with his family members and relatives and very close friends. However, this did not mean that he wanted to keep quiet about the whole thing. In fact, one cannot describe what had happened as a small private matter. There were separate celebrations. There was a celebration at home. The maiden family of the 1st plaintiff had a celebration later in the Lai Kung Restaurant. There was also a celebration for his other friends, including the directors of the Tung Wah Group of Hospitals. It was suggested that since there were no invitation cards, this might indicate that Mr Kwan intended only a low-key civil marriage. I accept that the reasons given by the 1st plaintiff were not convincing. However, given all these celebrations, not counting the dinner party at Madam Wong's maiden family, I should think that the lack of invitation cards was neither here nor there. I do not accept that Mr Kwan did not attach much importance to his second marriage.

86. It was suggested that that was Mr Kwan's attitude on the wedding day since he went to a meeting at the office of Messrs Lo & Lo after the ceremony in the Marriage Registry and he also went back to his office in Central. I find the evidence of the 6th defendant in connection with this aspect rather unsatisfactory and I do not think I can place too much reliance on his evidence. It might be that in between the Western style ceremony in the Marriage Registry and the Chinese style ceremony at home, Mr Kwan had attended to some urgent business matters. Even if he had, I do not think this had any effect on his intention to contract a valid marriage with the 1st plaintiff or cast any doubt on whether he had gone through the ceremonies as alleged if they had indeed taken place.

87. Mr Kwan's intention was clearly to take the 1st plaintiff as his tin fong wife. He came from a traditional family. He was a conservative man in his late 50s. He observed ancestral worship and kept festivals regularly and put on a cheung sam even on his birthday. I believe he was the sort of person who would have followed whatever traditional rites or ceremonies that were required of him for the purpose of a Chinese style marriage. There was no reason to suspect that what the 1st plaintiff and her witnesses had described as to the steps taken before the wedding day had not taken place. In fact, there was no evidence to contradict them. I would accept that they had correctly described to me what had taken place prior to the wedding day on 27th May 1960 and that Mr Kwan's 6th younger sister had made those visits to the 1st plaintiff's maiden home and had done those things as described. Whether what had taken place would also constitute part of a customary marriage is of course another matter.

88. As regard what happened on the wedding day, if Mr Kwan was in the habit of worshipping ancestors at least twice a month and holding celebrations on traditional Chinese festivals, he would have, on this big occasion, worshipped ancestors with the 1st plaintiff and observed all the traditional rites. Again, there was no evidence to the contrary. The only suggestion made by the 6th defendant was that since his father had returned home late, it was unlikely that there was any ceremony performed on that evening. It was quite obvious or even understandable that the 6th defendant was not very happy that Mr Kwan had decided to re-marry. However, I do not think he had the courage of openly challenging his father on something which his father was certainly entitled to do. That being the case, I should think that at the most, the 6th defendant would have taken a passive line by abstaining from any ceremony which might have been performed in the house. As he said, he returned home and went back to his own room on the ground floor. He did not see personally what had taken place on the 1st floor although he said he saw his father going there. But his deliberate absence did not mean that those things which were alleged to have taken place on the 1st floor had not taken place. The other suggestion was that since his father only returned home for half an hour before dinner, there would be very little time for his father and the 1st plaintiff to undergo all these ceremonies. I do not believe that the worshipping of ancestors and the serving of tea on the 1st floor would take very much time. In any event, the 6th defendant was not in a position to dispute positively that the ceremonies as described by the 1st plaintiff, the 2nd plaintiff and Madam Annie Fung did not take place. I will accept that they did.

89. There was the document at page 370 which was in the possession of the 1st plaintiff and which set out the various items of expenditure incurred for the purpose of the customary marriage. Those items included $1,144 for cakes, $1,040 for roast pork, $128 for shoes for the bride's brother, $211 for dried seafood, $40 for lucky money for the bride's dowry, $200 as lucky money for the go-between, $40 for the trousers money for the bride's brother, $403 for golden bangles and ring, $500 for a banquet for Madam Wong's maiden family, $100 as lucky money for Madam Wong's maiden family and servants, $140 as lucky money for the son-in-law of the 1st plaintiff's maiden family and their servants, $200 as lucky money for the bride, $300 for roast pig. It is quite clear that most if not all of these items to which I have referred were consistent only with the celebration of a marriage. It is interesting to note there was the lucky money for the go-between and money for a banquet for Madam Wong's maiden family. I think all these items indicated that Mr Kwan and whoever was asked to organise for the marriage had gone to such detail in order to comply with all tradition and rites. I think Mr Kwan clearly had the intention to perform all the rites for the purpose of a Chinese customary marriage.

90. I have also some doubts as to whether the 6th defendant was telling me the truth with regard to the objection of his 8th granduncle. I am not surprised that there were some discussion by the 6th defendant and the Madam Wong's maiden family about Mr Kwan's intended marriage to the 1st plaintiff. They might not be happy about it too and they might even show displeasure or anger. It is not necessary for me to make any finding on that. But even if that was their attitude, this was neither here nor there. I do not think that the consent of the maiden family of the deceased kit fat wife was necessary to the taking of a tin fong wife. In any event, since Madam Wong's parents had passed away, one would expect that a reference to Madam Wong's maiden family would refer to her brother's family. It was therefore quite reasonable and understandable for Mr Kwan's family to look to the younger brother of Madam Wong as her maiden family and that any ceremony which they felt obliged to perform in respect of Madam Wong's maiden family would be performed to her younger brother's family. Afterall, her younger brother was her closest family member in Hong Kong and the 8th granduncle had already passed away leaving only a concubine in Taipo.

91. The 6th defendant alleged that his father did not consider the marriage to be a very important event and had only asked him to spend $1,500 on the dinner party held at home on the wedding day. There was a document which was discovered by the 1st plaintiff to have been in her possession since the time of the marriage. It was in the form of a simple account of money received and payments made. It did not support and was not consistent with the 6th defendant's allegation. First, if this document was anything to go by, it showed that the money received for spending in connection with the marriage consisted of $1,500 from the 6th defendant, $2,000 from Mr Kwan and $1,000 from the "2nd aunt". This suggested Mr Kwan's sixth younger sister who was instructed by Mr Kwan to organise the marriage and celebration did not only have $1,500 given to her by the 6th defendant but altogether $4,500. In fact the amount of expenditure recorded in this document was more than that. Second, a careful look at the items of expenditure revealed that there was no item for dinner party. In other words, this amount of $4,500 (which included the $1,500 alleged to have been given by the 6th defendant) was expended on various items relating to the marriage but not for the dinner party. While this document might not be complete, it clearly showed that Mr Kwan must have spent another sum on the dinner party at home which was not listed here. I find it difficult to believe that Mr Kwan only treated the marriage celebration at home to be nothing more than ancestral worship.

Validity of the Registry Marriage

92. It is not seriously disputed that Mr Kwan had entered into a Chinese customary marriage with Madam Wong. He had also taken Madam Au Yeung as his concubine during the lifetime of Madam Wong. When Mr Kwan went with the 1st plaintiff to the Marriage Registry to go through a marriage ceremony there, Madam Au Yeung was still alive although Madam Wong had passed away a year ago. Was the registry marriage between Mr Kwan and the 1st plaintiff valid? The 1st plaintiff had, in her application for a grant of Letters of Administration, filed an affirmation in support relying on this registry marriage.

93. Counsel for the plaintiffs submitted that the effect of the registry marriage was that since the marriage, the parties would have changed their personal law and that such marriage would have the effect of superseding Mr Kwan's previous polygamous marriage between Mr Kwan and Madam Wong which was followed by the union of concubinage between him and Madam Au Yeung. Counsel argued that the only effect of the registry marriage would be that Mr Kwan could no longer contract another polygamous union. He further submitted that as Madam Au Yeung was not a wife even by Chinese customary law, Mr Kwan had no undivorced spouse at the time he went through the registry marriage with the 1st plaintiff. Hence, Mr Kwan had the capacity to enter into such marriage which was therefore valid.

94. Counsel for the 6th defendant on the other hand, submitted that since Mr Kwan had a concubine living, Mr Kwan was debarred from having the capacity to contract a civil marriage under the provisions of the Marriage Ordinance which was the equivalent of a Christian marriage. She argued that a concubine was a secondary wife and therefore the marriage between Mr Kwan and Madam Wong was not only potentially but actually polygamous. In any event, she argued, concubinage was a union between a man and another woman. Hence when Mr Kwan purported to marry the 1st plaintiff under the Marriage Ordinance, that marriage could not be a union of one man and one woman to the exclusion of all others. Counsel argued that the registry marriage was therefore not valid because of lack of capacity on the part of Mr Kwan.

95. Counsel for the 1st to 5th defendants conceded that Mr Kwan did not have the capacity to enter into a registry marriage so long as he had a concubine and was intending to keep her as such after the registry ceremony. He agreed that Mr Kwan neither intended nor had the capacity to enter into a marriage union to the exclusion of all others.

96. In my view, the submission of counsel for the 6th defendant was correct and the concession of counsel for the 1st to 5th defendants was quite proper.

97. Every marriage under the Marriage Ordinance shall be a Christian marriage or the civil equivalent of a Christian marriage. A Christian marriage or its civil equivalent implies a formal ceremony recognised by the law as involving the voluntary union for life of one man and one woman to the exclusion of all others (see s.40). This was taken from the famous pronouncement in the case of Hyde v. Hyde. In the Christian concept which is adopted for the purpose of the Marriage Ordinance, a marriage is an affair of two persons and two persons only, no more and no less. This is the spirit and essence of a Christian marriage. Two consequences follow from this. First, before a man can contract a registry marriage, he must have no living undivorced spouse. This is because if he still has an undivorced spouse, he will find it difficult if not impossible, without first divorcing her, to live up to the letter and spirit of the Christian marriage which requires the union to be between a man and a woman to the exclusion of all others. Further, under s.20 (1)(b) (or s.20 (1)(c) for a marriage which took place after 30th June 1972 ) of the Matrimonial Causes Ordinance, Cap 179, a marriage shall be void if the man has a living undivorced spouse at the time of the marriage. Second, after he has contracted a registry marriage, the husband cannot take any other woman. This is because it would again be contrary to the letter and spirit of a Christian marriage since it will no longer be a union of a man and a woman to the exclusion of all others. If the husband takes and/or keeps another woman, this would be bigamy if he goes through a second marriage ceremony or at least adultery on which the wife can rely to petition for a divorce if she finds this to be intolerable.

98. Can a man who has no living undivorced spouse but a concubine go through a registry marriage with another ? This was the case of Mr Kwan. His first spouse, Madam Wong, had already passed away and Madam Au Yeung was only a concubine. Did he have the capacity to enter into a valid registry marriage with the 1st plaintiff ? I do not think so.

99. The taking and keeping of a concubine is a feature of a Chinese customary marriage which is different from a registry marriage. Since Chinese customary law forms a part of the law in Hong Kong, Chinese residents in Hong Kong had, until 1971, been permitted to enter into marriages pursuant to Chinese customary law. Under Chinese customary law, it was permissible to take a wife and several concubines. Chinese customary marriages and unions of concubines contracted prior to 1971 had always been recognised as lawful in Hong Kong and as from 1971, are recognised under the Marriage Reform Ordinance. A party to a Chinese customary marriage may take a concubine but he need not do so. A concubine is not a spouse. Although she is sometimes described as a "secondary wife", she does not have the status of a wife according to Chinese customary law. However, she is still another woman of the man in the family apart from the wife. If the principal wife dies but the concubine is still living, I do not think the man can enter into a Christian marriage or its civil equivalent with a third woman. This is because he was already a party to a polygamous marriage and he cannot declare that his union to this third woman can be to the exclusion of all others.

100. There is a provision in the Marriage Ordinance which enables the parties to a Chinese customary marriage to go through a registry marriage under the Marriage Ordinance (s.38). The condition under that provision is that the husband does not have any other wife. The intention of s.38 is clearly to enable a couple married under Chinese customary law to convert their marriage into a registry marriage provided that they can live up to the letter and spirit of a Christian marriage. If there is already another woman, be she another wife or a concubine, it would be contrary to s.38 to allow the couple to go through a registry marriage under the Marriage Ordinance. In other words, only a potentially and not an actually polygamous marriage can be converted into a monogamous marriage. The rationale is the same : the union can no longer be a union of one man and one woman to the exclusion of all others.

101. It is therefore quite clear that if a man has a living concubine, he is in no better position than he is with a living undivorced spouse : he cannot go through a valid registry marriage with another woman without first formally terminating his relationship with his concubine.

102. Furthermore, after a man has entered into a registry marriage under the provisions of the Marriage Ordinance, he can no longer take any concubine because that would contravene the requirements of a Christian marriage or its civil equivalent. He has by choice opted for a monogamous marriage and is not permitted to take a concubine as a man who has entered into a Chinese customary marriage is entitled to do. The authority is clear on this.

103. Blair-Kerr, J. in Yeung Yeu-kong v. Yeung Fung Lai-mui said at p.25:-

"Not only must the husband not have living 'any other undivorced spouse' at the time when he goes through his monogamous marriage ceremony, but henceforth during the subsistence of the monogamous union he forfeits his right to take secondary wives - a right which he undoubtedly had during the subsistence of his customary marriage. ... In my view, when parties invoke the provisions of the Marriage Ordinance, to that extent they change their personal law. The monogamous marriage supersedes the customary marriage."

Mills-Owens, J. also said at p.26:-

"... Parties to a customary marriage cannot contract a marriage under the Ordinance unless their existing customary union is what one might term 'de facto monogamous'."

Huggins, J. said at p.30:-

"By contracting a marriage under the Ordinance a party to a customary marriage was given certain benefits in return for taking upon himself what some might regard as a more burdensome incident, namely monogamy."

The learned author of an article in the Hong Kong Law Journal, Vol. 5 of 1975, said at p.27 of the Article "Chinese Marriage and Divorce" said that:-

"Apparently he would be unable to contract a marriage under the Ordinance if he had taken a concubine previously."

104. I would respectfully agree with the comments of the learned judges in the Yeung v. Yeung case and the remark of Mr Pegg.

105. Mr Kwan had a concubine, Madam Au Yeung, at the time when he wanted to marry the 1st plaintiff. He had all the intention to keep Madam Au Yeung as his concubine. Although he went through a registry marriage with the 1st plaintiff, it is, in my view, quite clear that he had no intention of complying with the letter and spirit of a Christian marriage or its civil equivalent. His marriage to the deceased, Madam Wong, was not only potentially but also de facto polygamous and the concubine was still alive when he went through the registry marriage with the 1st plaintiff. I do not think it can be argued that he had the capacity to enter into a registry marriage. His marriage under the Marriage Ordinance with the 1st plaintiff must, therefore, be null and void. Even if his registry marriage could be valid, he would not be entitled to take the 1st defendant as his concubine.

106. For the reasons I have given above, I hold that Mr Kwan's registry marriage with the 1st plaintiff was not valid.

Validity of the Chinese customary marriage

107. I have earlier held that Mr Kwan and the 1st plaintiff had observed certain rites and customs before their wedding day and had also gone through certain ceremonies on that day. The question remains : whether there was a valid Chinese customary marriage. This depends on the requirements of such a marriage under Chinese customary law.

(1) The expert evidence

108. Expert evidence was adduced on what constitutes a valid Chinese customary marriage according to Chinese customary law.

109. The plaintiffs called Dr Hugh Baker, a professor of Oriental Studies at the University of London as an expert witness. He had given evidence as an expert in these courts and I do not think it was seriously disputed that he qualified as an expert on Chinese law and customs.

110. Dr Baker believed that the registry marriage pursuant to the Marriage Ordinance between Mr Kwan and the 1st plaintiff was a valid marriage. That is of course a matter for this court. But he took the view that according to Chinese law and custom, a customary marriage celebrated after a registry marriage would not invalidate either ceremony. According to Dr Baker, it was permissible under Chinese customs to take a tin fong wife while there was still a concubine. He said that since Madam Au Yeung had not been elevated or promoted from the position of a concubine to that of a wife, there was nothing to stop Mr Kwan from taking a wife to succeed Madam Wong. He was of the opinion that if the account given by the 1st plaintiff was to be relied on, the very open and often public ceremonies which were conducted over several days in May 1960 qualified the marriage as valid both as a Chinese customary marriage as well as a Chinese modern marriage.

111. The 6th defendant called Mr Fong Nai Ching and put him forward as an expert on Chinese law and custom. Both the 6th defendant and Mr Fong raised several matters and cast doubt on the opinion of Dr Baker as to the validity of the marriage between Mr Kwan and the 1st plaintiff as a Chinese customary marriage. In this trial, Mr Fong purported to give some opinion on Chinese customary marriage. He said that to constitute a valid Chinese customary marriage, certain rites and customs had to be observed. He raised a number of points which, according to him, would indicate that the marriage in Chinese customary style between Mr Kwan and the 1st plaintiff was not valid. In essence, he said that not all the necessary rites and customs had been observed by Mr Kwan and the 1st plaintiff.

112. Mr Fong's qualification as an expert on Chines customary marriage was challenged by counsel for the plaintiffs and the 1st to 5th defendants. He had studied traditional Chinese classics in his early education. He had obtained a Bachelors degree and a Diploma in Education from the University of Hong Kong. He also studied Public Administration at the University of Cambridge on Scholarship and during this study, he took certain law courses. He was a Senior Education Officer and had acted as Assistant Director of Education. He had also, on several occasions, been invited as an official guest of the Government of the United States, Canada and United Kingdom to visit major universities and had given speeches on Chinese cultures including Chinese customs of Hong Kong and the traditional Chinese marriage ceremony. He had been very active in the Chinese community and was an office bearer in various clansmen associations. He had also been the Principal Secretary of the Board of Directors of the Tung Wah Group of Hospitals. In the light of the conclusion which I have come to in respect of the customary marriage, I do not find it necessary to decide whether Mr Fong was an expert or not. If, however, I have to make such a decision, I would say this. Mr Fong was certainly a very learned men with great interest and experience in Chinese tradition, culture and customs. However, with the greatest respect to him, I would be inclined to hold that he would not be accepted as an expert on Chinese customary law and marriage on the ground that he lacked the necessary study and knowledge in this particular field. Nevertheless, I think his views formed from his past experience are still worth careful consideration.

(2) The grounds of objection

113. Mr Fong took the view that to be valid, a Chinese customary marriage must comply with the "Three books and six li's". He said that the six li's stood for the six steps necessary for a Chinese customary marriage, namely : proposal, name, divination, gifts, date and collection. He said that in respect of each of the six steps, there would be a set of documents consisting of the contract of marriage. These covenants were generally named the three books, although there were more than three such documents. There would be an exchange of documents in respect of each of the six steps. These documents were very important and sometimes they were kept in a wedding article box designed for such documents.

114. Mr Fong raised several grounds of objections for saying that the customary marriage between Mr Kwan and the 1st plaintiff was not valid. The main objection was that from the evidence adduced by the plaintiffs, he took the view that not all the marriage rites had been observed. He noticed that Mr Kwan had no parents or family elders at the time of his marriage. It was not clear whether his marriage had the blessing of his family elders. Mr Fong said that it was necessary to exchange necessary information such as the names of the parties, their social status and birth data which were called the eight cyclical characters. Such information should be written on red paper entitled "age spectrum" which would be put under an incense burner on the domestic ancestral altar for three days to see if any inauspicious events took place. However, it seemed that this was not done in the present case. He also doubted whether there was any matching of the cyclical characters of Mr Kwan and the 1st plaintiff . The 1st plaintiff could not produce any of the documents of marriage, that is, the Three Books. She could not produce the document containing the parties' respective cyclical characters or a dowry inventory to show that her marriage had full the support and approval from her family. All these, he said, indicated that it was doubtful whether the 1st plaintiff had undergone the six steps of marriage.

115. Mr Fong pointed out that Mr Kwan did not personally go to the 1st plaintiff's maiden home to receive her on the wedding day. He said that according to the marriage rites, it was necessary for the bridegroom to personally collect the bride from her maiden home and bring her to his family.

116. However, he later conceded that depending on the status of a man, this might not be necessary. Mr Fong also claimed that it was necessary for a Chinese customary marriage to be held on an auspicious date, otherwise the marriage would end up with misfortune. According to his reckoning, the wedding date, i.e. 27th May 1960 was the third day of the fifth moon in the Lunar Calendar. He said that that was an inauspicious date because the third day of every Lunar moon was the day of three demons who hated the brides. He said that the third day of the fifth moon was the worst date in 1960. Under cross-examination, he admitted that might be an auspicious day. Finally, Mr Fong said that the 1st plaintiff had failed to observe the three year mourning period after her father's death. However, he accepted that nowadays one year would be adequate.

(3) What constitutes valid marriage according to Chinese customary law

117. It can hardly be disputed that according to Chinese customary law, marriage was not only an affair of the two individuals. It was more a matter concerning the two families; it was "an alliance of families at the initiation of the negotiation with the bride's family through a go-between" (see Saied J. in Chan Chung-hing v. Wong Kim-wah [1986] HKLR 715 at p.724).

118. In order to have a valid marriage, it was necessary to observe the marriage rites. As set out in his work "Marriage Laws and Customs of China", Dr Vermier Chiu quoted a passage from the Book of Rites :

"A woman who marries according to marriage rites becomes a wife and a woman who marries without observing the marriage rites becomes a concubine."

Observance of the necessary marriage rites was therefore of vital importance for a valid customary marriage.

119. Marriage rites however varied at different periods of Chinese history and they differed much in different parts of the country and according to the social positions of the parties concerned. Chinese customary law was not static. As it evolved and developed, so did marriage rites. In this connection, I would respectfully agree with the comments made by Saied J. in Chan Chung-hing v. Wong Kim-wah at 724 where he dealt with the nature of customary law:-

"All this boils down to the fact which is accepted that customary law is not static: it has been described as 'a living and developing organ' - see the article by E.S. Haydon in [1962]11 International and Comparative Law Quarterly 231."

"Insofar as the manner in which the evidence should be approached is concerned, when it is accepted that the Chinese customary law is a living thing which evolves and develops, providing it with the necessary flexibility in order to meet any situation or circumstance, in order to see whether the essence of the traditional customs has been retained and complied with, I think that it behoves the court to view the ceremonies as a whole. Looking at each ceremony as if it were a separate water-tight compartment, besides being a negation of the recognition of the inherent qualities of the customary law, would be tantamount to taking it as ossified so that only absolute compliance and nothing less would do."

See also the comments by Huggins J. in Wong Kam-ying & another v. Man Chi-tai at p.211 to the effect that the Chinese customary law did not "ossify" at a particular date.

120. Since what sort of marriage rites are required to constitute a valid customary marriage depends on the time and place of the marriage and the social conditions prevailing at the time of the ceremony, a large degree of laxity is permissible. As Huggins J. said in the case of Wong Kam-ying v. Man Chi-tai at p.213:-

"Dr. Chiu says (ov. cit.7) that as early as the Sung Dynasty (A.D.960 to 1279) the Six Rites were simplified and reduced to three. I think that even greater laxity prevails today than prevailed in 1843."

121. I was referred to the decision in Fan Kam-ching v. Yau Shiu-hing [1986] HKDLR 14 where H.H. Judge Lo dealt with the facts of that case and said as follows:-

"On the basis of that information I am not satisfied that the matters set out in the wife's affirmation are sufficient to prove a valid customary marriage. In particular that:-

(1) There is no evidence that the marriage took place in Hong Kong.

(2) There is no evidence of any marriage contract between the families e.g. a betrothal.

(3) There is no evidence of any conveyance of the bride to the bridegroom's family home.

(4) There is no evidence of any knowledge or consent to or participation in the marriage on the part of the husband's parents or their representatives.

(5) There is no evidence of acceptance of the bride into the bridegroom's family or of any recognition of her status as a daughter-in-law.

(6) It is unclear whether the husband's ancestors were worshipped, the only reference to ancestor worship in the applicant's affirmation being to 'our ancestors'.

(7) There was insufficient evidence that the banquet held to celebrate the marriage was in fact, to those attending, known to be in celebration of the marriage.

Indeed there was insufficient evidence that the ceremony was in accordance with the traditional Chinese customs accepted at the time of the marriage as appropriate."

122. Counsel submitted that all these indicated the sort of marriage rites necessary for a valid customary marriage nowadays. Some of these are of course relevant considerations. However, with respect, I do not read this passage of the late learned judge as saying that these are the necessary and essential ingredients of a Chinese customary marriage and that the absence of any one of them would invalidate the marriage. In my view, the learned judge was drawing a conclusion from the facts of the case before her that the purported marriage in her case was not a customary marriage because it had none of these points. There are other previous cases on Chinese customary marriages. For the same reason, I do not propose to embark on a detailed analysis of these cases and what they said about the sort of rites required. Each case was decided on its own facts. I would prefer to examine the underlying principles.

123. I think it is fair to say that the sort of marriage rites necessary for a valid customary marriage in 1960 would be very different from what were required originally say several hundred years ago in China although the basic essential ingredients would be the same. It is therefore important to examine the essential ingredients which constitute a valid customary marriage.

124. It is clear from Dr Vermier Chiu's book on Chinese customary law that there were originally six rites, the observance of which was a necessary condition for the validity of a customary marriage. Originally the six rites were as follows :

(1) Na Ts'ai - this was the procedure of sending a go-between to offer a present or gift to the girl's maiden home. This was basically an offer of marriage. If the marriage proposal was acceptable, the present or gift would be accepted.

(2) Wen Ming - this was the procedure of enquiring as to the name and date of birth of the girl. The girl's family would reply by giving her name and also the year, month, date and hour of her birth, that is, the eight cyclical characters of her birthday.

(3) Na Chi - this was the procedure of finding out whether or not the match would be suitable or not. The girl's eight cyclical characters would be matched with those of the boy in order to see whether they were compatible or not. This would involve writing the cyclical characters on a piece of red paper and placed it underneath the incense burner in front of the ancestral tables for three days. If during that period, nothing infelicitous had happened, that would mean that the cyclical characters could match.

(4) Na Cheng - this was the procedure of paying money in settlement of the marriage. This involved the go-between bringing the money to the bride's family.

(5) Ch'ing Ch'i - this was the procedure of requesting the fixing of the date of the wedding. This meant that the boy's family would request the girl's family for a date to be fixed for the wedding. But in actual practice, the fixing of the wedding date normally rested with the boy's family. They would write to the girl's family informing the latter of the proposed wedding date. The letter would be delivered to the girl's family who would inevitably accept such a date.

(6) Ch'in Ying - this was the procedure of welcoming the bride by the bridegroom at his home on the wedding day. How much this would involve depended on the status of the bridegroom. A commoner needed not welcome his bride to his home in person. But a person of position must proceed in person to the bride's home, usually on horseback to escort her to his home.

125. In addition to these six rites, there would also be two more rites to be performed by the bride. This would involve "the rite for becoming a wife" and "the rite for becoming a woman". The former involved the consummation of the marriage by sexual intercourse on the night of the wedding after performing certain ceremonies which varied in different parts of China. The latter was completed by paying respects to the bridegroom's parents by "kow tow" and serving tea on the following day.

126. It is not disputed that since the Sung Dynasty these six rites were simplified and reduced to three. According to Dr Vermier Chiu, na ts'ai and wen ming were combined and the new combination was called ts'ai tse and "select". Na chi, na cheng and ch'ing ch'i were amalgamated and became na pi or "payment of money". Ch'in yin was left intact. And so it seems that since the Sung Dynasty, only three rites were observed and they involved the procedure of selecting the bride, payment of money in settlement of the marriage and welcoming the bride being welcomed into the bridegroom's home. In spite of these changes, customary marriage were still called marriages by the six rites although there were only three rites to be observed. Subsequently, these three rites had been further simplified and reduced through the years and modified according to different places in China. The other two rites, "the rite for becoming a wife" and "the rite for becoming a woman", which were to be performed by the bride after the wedding were no longer observed separately but were merged into the marriage ceremonies to be performed together with the other ceremonies on the wedding day.

127. In my view, whatever changes had been made to these rites, one must always bear in mind that a Chinese customary marriage was by customs and tradition still essentially an alliance of the two families. Hence, there would always be elements such as : the presence of a go-between, the presentation or exchange of gifts, the approval or agreement of the heads of the two families, the holding out to the public of the event including welcoming the bride into the bridegroom's family. It is also clear that a customary marriage did not begin and end on the same day. It started sometime before the wedding day and finished a few days after that. So far as one can gather from these authorities, there were three essential stages where certain steps must be taken in order to constitute a valid customary marriage. The first stage would be that of proposal and betrothal. It consisted basically of a go-between bringing gifts or presents of betrothal from the family of the man to the family of the woman. It symbolised an offer on the part of the family of the man to enter into a contract of marriage with the family of the woman. The second essential stage would be that of an approval or agreement by the two families. This included the matching of the two persons' particulars and the fixing of the wedding date. It symbolised that the marriage had the blessing of the heads of families and indicated a confirmation of the intention on the part of both families to proceed with the marriage. The last essential stage would be the welcoming of the bride by the bridegroom into his family which was done in the presence of relatives and friends. It was a symbol of acceptance in public of the bride into the bridegroom's family. This involved all the ceremonies which were to be performed on the wedding day. The details of such ceremonies would depend on different places in different parts of China. This would involve the receiving of the bride into the groom's family in the form of a sedan chair in the olden days or in the form of a car or other transportation, the worshipping of heaven and earth and the bridegroom's ancestors, the serving of tea by the bride to the family elders, the introduction of the bride to the other members, of the family and a banquet to celebrate the occasion.

128. In my opinion, if these essential stages were present, it could be said that the marriage would be considered as a validly constituted customary marriage.

(4) Validity of this customary marriage

129. Unlike couples in conservative China, Mr Kwan and the 1st plaintiff knew and dated each other before they decided to get married. When they had decided to do so, they intended to go through both Western style and Chinese style ceremonies. I do not think I need to repeat the evidence concerning what happened before and on the wedding day. It is clear that Mr Kwan's 6th younger sister acted as a go-between. She formally proposed marriage to the 1st plaintiff's family on behalf of Mr Kwan. She delivered the betrothal gifts for Mr Kwan. She brought back the particulars of the 1st plaintiff. She discussed with the 1st plaintiff's family on the date of the wedding. The marriage proposal was accepted by the 1st plaintiff's family. Her dowry and some items of furniture were sent to Mr Kwan's home which was to be the matrimonial home. On the wedding day, Mr Kwan sent someone to collect the 1st plaintiff by car. She was first transported to a salon to take photographs and then escorted to Mr Kwan's home. The two worshipped heaven and earth and Mr Kwan's ancestors in the presence of his family and relatives. She was introduced to them as his tin fong wife. There was a celebration afterwards. In my view, the basic marriage rites to which I have referred above had been duly performed by Mr Kwan.

130. Counsel for the 6th defendant submitted that there could be no valid customary marriage since there was be no intention on the part of Mr Kwan and the 1st plaintiff to enter into a customary marriage; they only went through the marriage rites to comply with tradition. In my view, the parties must have the intention to get lawfully married when going through the marriage ceremonies. However, I doubt if it is necessary to show they had the intention to go through a particular type of marriage. In any event, I do not think there was no intention to enter into a customary marriage in the present case. It is clear Mr Kwan and the 1st plaintiff intended to get lawfully married. They did not only want the legal status and protection under the laws of Hong Kong. Mr Kwan who had already got a concubine also wanted to confer upon the 1st plaintiff the status of a tin fong wife who would take the place of a kit fat wife and be the female head of the family. That was the understanding of the 1st plaintiff too and she was prepared to accept that role. This was something both of them wanted to achieve. It was their intention to go through both the Western style and Chinese style ceremonies. I am satisfied that they intended to be validly married under both the Marriage Ordinance and the Chinese customary law. I believe that in dealing with the Probate Registry, the solicitors for the 1st plaintiff thought that it would make things easier if they relied on the registry marriage which could be proved by simply producing a marriage certificate instead of going through details of the marriage ceremonies in the affirmation. The 1st plaintiff should not be prevented from relying on her customary marriage if it was in all aspects valid.

131. I shall now deal with the objections which may cast some suspicions on the validity of Mr Kwan's marriage and see if there was anything which might vitiate it as a Chinese customary marriage.

132. First, the absence of family elders. It would seem that since a customary marriage is still very much a matter between the two families, the head or elders of the family would be necessary. Mr Kwan's parents had passed away long before 1960. There is no evidence of the presence of any uncle or male elders of Mr Kwan. However, Mr Kwan was in his 50s. He was himself the head of the family and he could certainly make any important decision. I do not think that the absence of family elders would vitiate the marriage. As Dr Baker pointed out, if that were to be the case, then, a person who was in the unfortunate situation of having no parents or family elders would not be able to contract a valid customary marriage. That could not, in my view, be correct. In fact, it would be against the Chinese customs or tradition for such person not to marry and beget children to continue his line of posterity.

133. Second, the lack of any documents which were loosely described as the Three Books. From the description of the marriage rites given in the literature, and as summarised by me above, it would seem that Mr Fong was correct in saying that during the various stages of a customary marriage, there would be some documents which would serve certain purposes. There would be a document setting out all the gifts and presents delivered by the man to the woman's family during the betrothal stage. There would also be a document on which the names and particulars including the eight cyclical characters of the bride. However, all the literature referred to me did not require the existence of any documents for the validity of a customary marriage. As the expert witness said, this is because the vast majority of Chinese were illiterate until recent years and the requirement of having these documents or the Three Books had been gradually relaxed. I do not see that the presence or absence of such documents in the form of red paper would have any bearing on the validity of the marriage. They would certainly be very strong proof that a certain step had been taken. However, without such documents, it cannot be said that the marriage was not validly contracted. As Dr Baker said, if it were otherwise, then many people in the rural areas who were illiterate would find it difficult to get married. I also notice that in some of the previous decided cases, no documentary evidence was produced.

134. Third, the presence of the bridegroom in collecting the bride. It was said that since Mr Kwan did not go to the 1st plaintiff's home personally to take her back, this would affect the validity of the marriage. I do not agree. The physical presence of the bridegroom at the bride's home to take her back to his own home was, of course, a clear public manifestation of acceptance. However, in my view, the essential thing was not merely the physical presence of the bridegroom in taking the bride back, but the welcome and acceptance of the bride into the family. It is more important to indicate to all family members, friends, relatives and the public that the bride was accepted by the bridegroom's family. In any event, it appears that although he did not go directly to the home of the 1st plaintiff to pick her up, Mr Kwan did arrange someone to drive the 1st plaintiff to the salon for taking photographs, then to the Marriage Registry for the ceremony and later accompanied her back to his own home in Nga Tsin Wai Road. The worshipping ceremony and tea serving ceremony were performed at home in front of family members. He also introduced the 1st plaintiff to them and asked his own children to address the 1st plaintiff in future as their mother. This was followed by a dinner party at home. All these clearly showed Mr Kwan's public manifestation of his welcome and acceptance of the 1st plaintiff into his family. I do not think that the failure of Mr Kwan to go personally to the 1st plaintiff's home to take her back would have any effect at all on the validity of the marriage.

135. Fourth, the wedding date was not auspicious. I think Mr Fong under cross-examination conceded that the 27th May 1960 could be an auspicious day according to Chinese reckoning. So it was not seriously alleged that the wedding day was inauspicious. However, even if it was, I do not think this would have any effect on the marriage's validity. There is no such requirement. As the expert witness said and in fact this is common sense, people who want to get married certainly would hope for the best and wish that the marriage would be a harmonious one and that everything would be fine after the marriage. Hence, they will, if they can, pick an auspicious date for the wedding or marriage ceremony. I do not believe that Mr Kwan's sixth younger sister who had taken the trouble of bringing the personal particulars of the bride home and picking a date and informing the bride's family of that date would have failed to at least check the tung shing (the Chinese Almanac) to see whether that day was a good date or at least not inauspicious.

136. Fifth, the failure to observe the necessary mourning period of three years. It was alleged that the 1st plaintiff had not observed the mourning period of one year after the death of her father. I do not think failure to observe the mourning period would have any effect on the validity of the marriage if it were otherwise valid. The mourning period had through the years been reduced and strict observance was not necessary in modern times. According to Bodde and Morris in Law in Imperial China, 1967 (at p.39), the position regarding mourning period is as follows :

"Central to the family values .... is the confucian virtue of Hsiao or Filial Piety. The importance of this virtue is illustrated by the provision in the T'ang Code requiring all officials, upon the death of a parent, to retire from office during the entire mourning period of 27 months (reduced by Ch'ing times, however, probably for practical reasons, to one year only)."

137. It was also pointed out that after the marriage ceremonies on the wedding day, Mr Kwan and the 1st plaintiff instead of staying in their matrimonial home went to spend a few days in Mr Kwan's villa in Yuen Long. I do not think this had any effect on the validity of the marriage. There was no requirement under Chinese customary law that a newly wedded couple must stay their first night in the matrimonial home. The wife would usually serve tea to her parents-in-law on the following day, but that had nothing to do with the validity of the marriage. In any event, Mr Kwan's parents had already passed away.

138. Having considered all the evidence and the applicable Chinese customary law, I am more than satisfied that Mr Kwan and the 1st plaintiff had intended to get validly married and had observed all the ceremonies and marriage rites which constituted a valid Chinese customary marriage. I would declare that they were lawfully and validly married according to Chinese customary law.

Mr Kwan's relationship with the 1st Defendant

(1) Commencement of relationship

139. The 1st defendant came to know Mr Kwan in April 1959. She started cohabiting with him in June of the same year. She gave birth for him to four children namely, the 2nd defendant on 7th January 1961, the 3rd defendant on 17th March 1962, the 4th defendant on 29th April 1963 and the 5th defendant on 18th June 1964. She and her children had lived in separate premises from Mr Kwan's home in Nga Tsin Wai Road.

140. The 1st defendant said that in 1960, she learned of the intended marriage between Mr Kwan and the 1st plaintiff, although she did not know when the wedding was going to take place. Mr Kwan had already told her that his sixth younger sister had found someone who was more suitable to help him look after his big family. She said that Mr Kwan did not tell her when the wedding was so that she would not be unhappy. She suspected that this might be one of the reasons why he did not want the wedding with the 1st plaintiff to be elaborate. He simply told her that he would be going on a trip to Taiwan for about a month. He also left her a blank cheque for her living expenses.

(2) The yap kung ceremony

141. Even after his marriage to the 1st plaintiff, Mr Kwan continued this relationship with the 1st defendant. It seems that at a later stage, some of Mr Kwan's family members and children had come to know of such relationship and had in fact met the 1st defendant on several occasions. Some photographs were produced before me showing that the 1st defendant had participated in some of the outings organised by some of Mr Kwan's children and family members. However, the 1st plaintiff had not met the 1st defendant or her children.

142. In August 1964, after the 1st defendant had given birth to her fourth child, Mr Kwan requested her to formally meet the 1st plaintiff in public. By this time, the 1st plaintiff did not insist on her objections to the 1st defendant. So on 15th August 1964, she was taken by Mr Kwan to his house where he resided with the 1st plaintiff. It was there she was introduced to the 1st plaintiff. She worshipped the ancestors of Mr Kwan. She also served tea to the 1st plaintiff. According to her, she presented tea in a cup placed on a sauce plate to the 1st plaintiff. The 1st plaintiff was very nice to her and did not make things difficult for her. When she was serving tea, she was about to kneel, but the 1st plaintiff did not let her do so. The 1st plaintiff just barely touched her seat and received the cup of tea. The 1st plaintiff said that they were now in a new era and could do away with all these obsolete practice. She did not give the 1st defendant any name but suggested that they should call each other "elder and younger sisters". The 1st plaintiff also asked her to serve tea to Mr Kwan. On that occasion, the 1st defendant's maid Madam Leung Lin was also present.

143. The 25th day of the Eighth Moon was the day before Mr Kwan's lunar birthday and that was called the warming day. The 1st defendant went in the evening to the 1st Plaintiff's house to worship the ancestors of Mr Kwan. There was also a dinner when all the close relatives of Mr Kwan attended. These relatives included Mr Kwan's sixth younger sister and her husband, Mr Kwan-hing (Mr Kwan's cousin) and his wife and mother, Mr Kwan Hung-hing (Mr Kwan's cousin, that is, the eldest son of Mr Kwan's sixth uncle) and his wife, Mr Kwan Kit-hing (Mr Kwan's seventh younger brother born of Mr Kwan's father's tin fong wife) and his wife, and Mr Kwan Chung-hing (another brother of Mr Kwan but born of Mr Kwan's father's concubine). Also present were the 7th defendant and her husband, the 6th defendant's wife, the 13th defendant and his wife, the 2nd plaintiff and the 16th defendant. Before that day, the 1st defendant had already known Mr Kwan's sixth younger sister, the 7th defendant, the 13th defendant and his wife and the 2nd plaintiff and her sworn mother. The 1st defendant was also introduced by the 1st plaintiff to those of Mr Kwan's relatives and children whom the 1st defendant had not met before and Mr Kwan had told his children to call the 1st defendant third younger mother.

144. On the following day, that is, Mr Kwan's lunar birthday, the 1st defendant was also present in the 1st plaintiff's house. There were also elder members of the family, including Mr Kwan's sixth younger sister, Mr Kwan Wan-hing's mother, Mr Kwan Hung-hing's wife, Mr Kwan Kit-hing's wife, and the 13th defendant's wife. Then there was the ceremony of serving tea. The 1st plaintiff served tea to Mr Kwan. This was followed by Madam Au-Yeung who served tea to Mr Kwan and the 1st plaintiff. Then it was the 1st defendant's turn to serve tea to Mr Kwan and the 1st plaintiff. Mr Kwan told his children to call the 1st defendant third younger mother. The 1st defendant also served tea to Mr Kwan's sixth younger sister, Mr Kwan Hung-hing's mother and Mr Kwan Hung-hing's wife. Then it was Mr Kwan's daughters-in-law to serve tea. After the serving of tea, a banquet was held. The 13th defendant who was not present at the serving of tea also attended the banquet.

(3) Acceptance by the 1st plaintiff

145. As far as the 1st plaintiff was concerned, she said that after the wedding day with Mr Kwan was set, she heard rumours that Mr Kwan had associated with the 1st defendant. She confronted Mr Kwan and suggested that the marriage should be cancelled. However Mr Kwan assured her that he was not serious in such association and would sever his relationship with the 1st defendant. The 1st plaintiff accepted that explanation and the marriage went ahead.

146. However, soon after the marriage, Mr Kwan told the 1st Plaintiff that the 1st defendant was pregnant. Because of this the 1st plaintiff said that she did not insist on Mr Kwan breaking his relationship with the 1st defendant. Some time later, she was told by Mr Kwan that the 1st defendant had given birth to a son and wanted recognition of her status. Nothing was done however, presumably because of the 1st plaintiff's objection. Later she was told by Mr Kwan that the 1st defendant gave birth to a second son who was her fourth child. The 1st plaintiff admitted that at first she did not want to accept the 1st defendant into the family. However since the 1st defendant had given birth to four children, including two sons, she could not refuse any more.

147. So some time in August 1964, the 1st defendant went to the home at Nga Tsin Wai Road. The 1st plaintiff said that the 1st defendant worshipped the ancestral shrines. The 1st defendant also served tea to her and was accepted by her and Mr Kwan's family. She added that the ceremony was treated as an internal affair of the family and so no guest was invited to attend. After the acceptance on that occasion, the 1st defendant and her children lived apart and never resided with the family at Nga Tsin Wai Road.

148. The 1st plaintiff denied that she had ever wept in front of family members of Mr Kwan and asked them to help her to prevent the 1st defendant from being accepted into the family. She did not try to go and "smash the secret dwelling" of the 1st defendant. The 1st plaintiff also accepted that after the yap kung ceremony, although the relationship between her and the 1st defendant was not close, she did accept her as the concubine of Mr Kwan and had treated her as such ever since.

(4) Acceptance and recognition by Mr Kwan's family

149. According to the 1st defendant, Mr Kwan's children called the 1st plaintiff "auntie", Madam Au-Yeung second younger mother and herself third younger mother. She said that she had been treated and recognised by Mr Kwan as a life long companion and that Mr Kwan had provided her and her children with financial support and that it was the intention of Mr Kwan to have a permanent relationship with her. It was also her evidence that the 1st plaintiff had all along accepted her as Mr Kwan's lawful concubine. She had been getting on very well with her and her children. During Chinese New Year and festivals, and Mr Kwan's birthday, the 1st defendant also served tea to the 1st plaintiff openly and in the presence of Mr Kwan's children and relatives.

150. The 1st defendant said that she was not only intended by Mr Kwan as his concubine and accepted by the 1st plaintiff and his relatives as such, she and her four children had integrated into Mr Kwan's family. She gave many examples as illustration.

151. On Chinese New Year eves and during festivals, the 1st plaintiff would give lucky money to the 1st defendant's children. Whenever there were happy occasions for celebration in the family, the 1st plaintiff would send gifts on behalf of the 1st defendant to the relevant parties. In invitation cards sent out in respect of banquets for Mr Kwan's birthdays, the two sons (the 4th & 5th defendant) of the 1st defendant were also included. On Ching Ming and Chung Yeung Festivals, the 1st defendant and her children would also go to worship Mr Kwan's ancestors. On the anniversaries of the births and the deaths of Mr Kwan's elder members of family including the death anniversary of Madam Wong, the 1st defendant would also go to the house of Mr Kwan for ancestral worship and stayed on for dinner afterwards. One of the photographs taken of the family gatherings was taken on the occasion when Mr Kwan celebrated his 80th birthday. That photograph showed the 1st plaintiff, the 1st defendant and the daughters-in-law all dressed in traditional Chinese gown sitting together with Mr Kwan. The 1st defendant and her children would also from time to time attend family gatherings such as mahjong games and dinner parties. There were photographs showing their attendance on those family gatherings. The 1st plaintiff had attended the graduation ceremony of the 4th defendant in 1985 when he graduated from Medical School at the University of Hong Kong and gave him a present.

152. When some of the children of the first wife Madam Wong got married, the 1st defendant would either be involved or invited. When the 14th defendant got married, she went to the 1st defendant's house to serve tea to her and the 1st defendant gave her gold jewellery as wedding gifts. In 1987, when the 12th defendant's daughter got married, the 1st defendant was invited to the wedding ceremony and banquet. The invitation card addressed her as "Third Mrs Kwan". Similarly the 1st defendant and her children were also invited to the ceremony and banquet at the wedding of the 7th defendant's daughter and when the 9th defendant's son got married. Again, the invitation cards addressed the 1st defendant as "Mrs Kwan, the third younger grandmother of the maternal side" and "Third Younger Mrs Kwan". On one occasion when the daughter-in-law of Mr Kwan Kit-hing came to Hong Kong from abroad, she went to visit the 1st defendant and served tea to her. The 1st defendant also gave her some gold jewellery as gift. When Kwan Hung-hing (the cousin of Mr Kwan, that is, the eldest son of Mr Kwan's six uncle) invited the 1st defendant to attend his daughter's wedding ceremony and banquet, the invitation card was also addressed to the 1st defendant as "Third Younger Mrs Kwan".

153. After the death of Mr Kwan, the family published in the newspapers an obituary. In such obituary, the 1st defendant was listed as a concubine of Mr Kwan and her four children were listed as his sons and daughters. On the tombstone, the names of the 4th and 5th defendants were also inserted as the sons of Mr Kwan. It was also the 1st defendant who applied to the Birth and Death Registry for the issue of a death certificate in respect of Mr Kwan. The three daughters of the 7th defendant and the two daughters of the 1st defendant (that is the 2nd and 3rd defendants) studied at the same school, Maryknoll Convent School and they went to school together in the same car.

(5) The 6th defendant's case

154. The 6th defendant said that the 1st defendant was never accepted or recognised as a concubine of Mr Kwan by the family generally. In a reply to the plaintiffs' request for particulars of what he meant by "family generally", the 6th defendant alleged that this meant himself, the 7th and 9th defendants. He said that soon after his mother Madam Wong's death in 1959, he heard from the 2nd plaintiff that Mr Kwan was cohabiting with another woman. He and his brothers and sisters did not want the woman to be brought into the family. Hence he and the 2nd Plaintiff summoned the 7th and 9th defendants to go and have a talk with Mr Kwan. According to him, his father said that the association with another woman was just to kill time. I have dealt with this part of the evidence before. I take it that this was relied upon by the 6th defendant to suggest that from the very beginning, he and some brothers and sisters including the 2nd plaintiff did not want that woman who turned out to be the 1st defendant to enter into the family.

155. The 6th defendant also said that sometime in 1967, his father Mr Kwan tried to obtain "his acceptance" to the 1st defendant by instructing the 2nd plaintiff to bring him and his wife to the 1st defendant's house. However, he refused angrily. On that same evening, he was invited to his father's home by the 1st plaintiff. There he saw the 1st plaintiff weeping in a room full of family members and the 1st plaintiff asked him and the others to help her to prevent the 1st defendant from entering the family. The 6th defendant said that he could remember this incident clearly because his home was very close to his father's place and because there were riots on the way and so he had to walk round and round in order to get to his father's home. I have grave doubts on this part of his evidence. It is clear from the 1st plaintiff's evidence and that of the 1st defendant that the Yap Kung ceremony was performed in 1964 and that was shortly after the 1st defendant gave birth to her fourth child. The riots were of course in 1967.

156. The 6th defendant also mentioned an occasion when the 1st plaintiff and other family members intended to go and "smash the nest" of the 1st defendant.

157. The 6th defendant said that the 1st plaintiff had objected to the 1st defendant until the death of Mr Kwan and that the 1st defendant was never accepted or recognised by other members of the family. He said that he came to that conclusion based on two observations. First, between 1980 and 1983, his father held mahjong gatherings every Saturday or Sunday. The 1st plaintiff, the 6th defendant's wife, and other guests who were good friends were present. The 6th defendant would often go there to collect his own wife. However on none of these occasions could he see the 1st defendant. In other words, he said the 1st defendant never took part in these popular mahjong gatherings which was so valued by his father. The second reason for which the 6th defendant said the 1st defendant was not accepted or recognised by the family was the 1st defendant's absence while Mr Kwan was taken ill in hospital. According to the 6th defendant, when his father was in hospital, all family members would pay visits to the hospital after 5 p.m. and stayed until 10 or 11 p.m. This continued from the time of Mr Kwan's admission to hospital until his death. The 6th defendant said that he was there everyday from 5 p.m. to 11 p.m. His father would enjoy his and the other members' company and they all lined up doing massage and cracking jokes with him. However, the 6th defendant said that the 1st defendant and her children never appeared. Upon cross-examination, the 6th defendant said that he did not mean to say that the 1st defendant never went to the hospital to visit his father but only that he did not see the 1st defendant mixing up with his family. It was suggested to him that the 1st defendant and the 1st plaintiff took turns to go to hospital to visit and look after Mr Kwan. To this, he said he did not know.

158. The 6th defendant, however, admitted that he went to the United States in 1970 and returned in 1973. After his return, he noticed that the 1st defendant had mixed up with other members of the family. He accepted that his wife had frequent contacts with the 1st defendant and was quite friendly with her. His wife would also from time to time go to the 1st defendant's home to play mahjong. However he said that even if his wife had mahjong games with the 1st defendant he could not care less.

159. He said that he was the most stubborn in the family and he had never addressed the 1st defendant as "sam tse", meaning third mother. He admitted that it was the 1st defendant who applied for and obtained a death certificate for Mr Kwan. He said that during the family meetings held after his father's death, the 1st defendant also attended. The solicitors told him that the 1st plaintiff was the widow and the 1st defendant was a concubine. His own lawyer also agreed to this and he just accepted. He was initially one of the persons to act as administrators of the estate of Mr Kwan but he agreed during one of the family meetings to step down and let the 1st defendant take his place. He said he would do so whoever that person was. He had also no objection to the 1st defendant being a director in some of his father's companies. He said that one of the reasons why he did so was because he did not want to work together with "dirty people". He had never greeted the 1st defendant but had seen her on important occasions such as birthday parties and festivals.

(6) Finding on the facts

160. I think the evidence is overwhelming. The 1st plaintiff was understandably not happy that Mr Kwan would, only a few years after their marriage, want to take a concubine. I am therefore not surprised that the 1st plaintiff had initially objected to the 1st defendant "entering the family". She might have even wanted to "smash the nest" of the 1st defendant at some stage, but I do not think I need to make any finding on this. However as the 1st defendant had given birth to several children for Mr Kwan, the pressure on both Mr Kwan and the 1st plaintiff to accept the 1st defendant increased. In fact, it was quite clear that even before the 1st defendant was accepted into the family, she had already met some of Mr Kwan's family members and participated in some informal gatherings and outings of the family. After the birth of the 4th defendant, Mr Kwan decided to take the 1st defendant into the family. The 1st plaintiff accepted reality and agreed to this.

161. I accept the evidence of the 1st plaintiff and the 1st defendant that there was in fact a yap kung ceremony which took place some time in 1964 as described by them. The 6th defendant was not in a position to dispute that. According to him, he was not present. I do not accept that it could have been after the 1967 riots as alleged by the 6th defendant. I also believe that during the ceremony, the 1st defendant's children were probably too young to be present to watch the occasion when their mother showed subservience to another woman. Because of the long lapse of time, I would accept that there might have been a few discrepancies in connection with certain details.

162. I am also quite satisfied and there can be no doubt that after the yap kung ceremony, the 1st defendant had been accepted and recognised by the 1st plaintiff and Mr Kwan's family members and friends as his concubine. They had also regarded her as the third mother of the family. It might be that at the beginning, the 1st plaintiff was reluctant to befriend the 1st defendant. This again was understandable and would account for the 1st defendant not joining some of the mahjong games within the family. It might also be true that after the yap kung ceremony, there could be some occasions when the 1st plaintiff was not happy that Mr Kwan went to the 1st defendant's place instead of coming home. However, I am satisfied that the 1st defendant and her four children had been accepted and recognised as part of the family. They took part in gatherings such as birthday parties, festivals, New Year celebrations and the worshipping of ancestors. It might be that individual members of the family, such as the 6th defendant or possibly also the 7th or the 9th defendants did not want to accept this reality and had refused to greet or even talk to the 1st defendant. That, however, could not alter the fact that the 1st defendant and her children were indeed accepted and recognised by everyone as part of the family.

Validity of the union of concubinage

(1) Requirements under the law

163. With regard to the necessary ingredients of a lawful union of concubinage, there is little dispute among the parties before me. It seems that there must be an intention on the part of the man to take the woman as a concubine and a public holding out of the woman as such a concubine. (See the expert evidence in Ng Ying Ho and another v. Tam Suen Yu [1963] HKLR 923.) There was a suggestion by an expert (Mr P.C. Woo) that recognition by the family was not essential so long as the public recognised the relationship. On the other hand, the literatures on Chinese law and custom seemed to require that there must be acceptance and recognition by the wife and the family. It was customary for the man to introduce the woman into the family and have the family recognise her as a concubine.

164. I take the view that to contract a lawful union of concubinage, there must first be an intention on the part of the man to take the woman into the family as his concubine. His intention would normally be manifested by taking the woman back to his home and introduced her to his family members and friends. Apart from that, there must also be an acceptance or recognition by both the wife and the family. I think it is important that the wife's acceptance must be present. This is because a concubine is supposed to be junior or subservient to the wife who has the status and authority as the female head of the family. The concubine must be secondary to her and must not usurp her position. Hence in almost all cases except where there is no principal wife, there would be a yap kung ceremony which includes the concubine serving tea to the wife. This is a symbol of subservience. In some cases, she would also be given a name by the wife. But that is not absolutely necessary. I would also think that the acceptance or at least recognition by the family generally is necessary. Afterall, the concubine is to be part of the family. It is immaterial or indeed inevitable that there may be individual members who are not friendly to her. The requirement of acceptance and recognition by the wife and family generally is now contained in the Marriage Reform Ordinance.

(2) Validity of the union

165. In the present case, I think the evidence is overwhelming that there was a yap kung ceremony held at home in the presence of Mr Kwan and the 1st plaintiff. Furthermore, since the ceremony in 1964, the 1st defendant and the children had been recognised and accepted by family members and friends as the lawful concubine and children of Mr Kwan. They had integrated into the family.

Provisions of the IEO

166. In view of my above findings on the marriage between Mr Kwan and the 1st plaintiff and the union of concubinage between him and the 1st defendant, I do not think it is necessary to make any ruling on the construction of the provisions of the Intestates' Estates Ordinance , Cap 73. However, in case I am wrong on any of these findings and also out of respect to the able submissions of all counsel, I should perhaps briefly deal with this matter.

167. Mr Kwan passed away intestate after October 1971. Hence, the provisions of the Intestates' Estates Ordinance applied to the distribution of his estate. Section 13 of that Ordinance which has a marginal note of "Transitional provision for concubinage" provides as follows:

(1) The provisions of the Schedule shall have effect with regard to a union of concubinage entered before the appointed day under the Marriage Reform Ordinance (Cap 178).

(2) In this section and in the Schedule, "union of concubinage" means a union of concubinage , entered by a male partner and a female partner before the appointed day under the Marriage Reform Ordinance (Cap 178), under which union the female partner has, during the lifetime of the male partner, been accepted by his wife as his concubine and recognised as such by his family.

168. There is no definition of "wife" in that Ordinance, although s.3 sets out the definition of a "valid marriage" for the purposes of the Ordinance.

169. Leading counsel for the 1st to 5th defendants submitted that his primary case was that the 1st plaintiff was a lawful wife under Chinese customary law and that the 1st defendant was a lawful concubine. He argued that if for any reason, there was no valid Chinese customary marriage, the 1st plaintiff was still a "wife" for the purposes of s.13 of the Ordinance because the mere fact that Mr Kwan went through a registry marriage did not prevent him from entering into a union of concubinage within the meaning of s. 13. It was also submitted that even if for any reason there was never a valid marriage and that the 1st plaintiff was not a wife of Mr Kwan, the 1st defendant was still a concubine for the purpose of s. 13 since the existence of a wife was not necessary under Chinese customary law for the taking of a concubine. Section 13 (2) should be construed to mean that there must be acceptance by the wife if any and recognition by the family generally. This interpretation was consistent with the purpose behind this transitional provision, i.e., to save the rights of many concubines in similar situations.

170. Counsel for the plaintiffs made a similar submission. He submitted that "union of concubinage" in s.13 referred to the fact of a concubinage under Chinese customary law, and that for the purposes of that Ordinance, a concubine taken by a person who had previously entered into a civil marriage was not deprived of her rights upon intestacy. He also submitted that the wife whose acceptance was required for a valid union of concubinage under s.13 (2) meant any one of the 4 categories of marriage under s.3 and not necessarily a Chinese customary marriage.

171. Counsel for the 6th defendant submitted that concubinage was a concept known only to the Chinese customary law and hence the only type of wife who would have accepted a concubine taken by her husband was a wife under Chinese customary law. She argued that if Mr Kwan had a valid civil marriage with the 1st plaintiff, he could not take the 1st defendant as a lawful concubine. Counsel further submitted that if the 1st plaintiff was not a valid and lawful wife, there was no one to accept the 1st defendant as a concubine who would not be able to benefit under the Ordinance. She said that s.13 (2) required both the acceptance of the wife as well as the recognition of the family. If either one was lacking, there could be no lawful concubine.

172. I agree that Chinese customary marriage is the only type of marriage specified in s.3 (apart from a foreign marriage) which would permit the taking of a concubine. Although it has been suggested that a party to a modern marriage can also do so, strictly speaking, it is still a monogamous marriage and concubinage can only be regarded as tolerated under such a marriage. There is no question of a husband in a civil marriage under the Marriage Ordinance taking a concubine. In my view, therefore, a concubine, in order to benefit under s.13 of the Ordinance, must be one who has been taken by a person who is already a party to a Chinese customary marriage. If Mr Kwan were legally married to the 1st plaintiff under the Marriage Ordinance, I would think that he was not permitted to take any concubine. If he did, the concubine so taken would not be a lawful concubine. It would follow that the 1st defendant could not fall within the ambit of s.13 of the Intestates' Estates Ordinance.

173. I would agree that s.13 as a transition provision was enacted as a safety net for concubines taken before October 1971 and their issues and hence, a more liberal interpretation may be applied to achieve that objective. Under Chinese customary law, the existence of a wife is not strictly necessary for the taking of a concubine. In other words, it is permissible for a man to take a concubine before he marries a wife. It is therefore possible that there can be a concubine without a wife. In such a situation, it would be harsh on the concubine if there is no wife to "accept" her for the purpose of s.13 even though she has been accepted and recognised by every member of the family for years. I am therefore inclined to take the view that s.13 (2) may be construed as requiring acceptance by the wife, if there is any. Hence, if the 1st plaintiff was not a lawful wife of Mr Kwan under either the Marriage Ordinance or Chinese customary law, the 1st defendant would still be a lawful concubine provided she had been recognised by Mr Kwan's family generally.

Conclusion

174. Since Mr Kwan was married to Madam Wong pursuant to Chinese customary law and had taken Madam Au Yeung as his concubine, he was a party to a de facto polygamous marriage. While Madam Au Yeung was still alive and Mr Kwan intended to keep her as a concubine, he could not enter into a monogamous marriage with the 1st plaintiff under the provisions of the Marriage Ordinance. His registry marriage was therefore null and void.

175. However, Mr Kwan intended to lawfully marry the 1st plaintiff and to confer upon her the status of a tin fong wife. He went through the necessary marriage rites with the 1st plaintiff according to Chinese customary law with such intention. They were validly married under Chinese customary law. The 1st plaintiff was and is his lawful surviving widow.

176. Mr Kwan had taken the 1st defendant as his concubine. She was accepted by the 1st plaintiff through a yap kung ceremony and was accepted and recognised by the 1st plaintiff and Mr Kwan's family generally. The 1st defendant was and is his lawful surviving concubine. The 2nd to 5th defendants were and are his lawful and natural children.

177. In view of these findings, I do not propose to make any ruling on whether Mr Kwan's marriage with the 1st plaintiff could have been regarded as a valid Chinese modern marriage although I can see some of the hall marks of such a marriage in the present case.

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Third Party Proceedings

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The issue

178. The issue to be decided in the Third Party Proceedings is whether the 15th defendant, Kwan Tit On, Daniel, was the natural son of Mr Kwan and Madam Wong. Since it is not disputed that Mr Kwan and Madam Wong were lawfully married, if the 15th defendant was their natural son, it would follow that he is also their lawful son.

179. This issue was raised by the 6th defendant in the main action when he made the allegation in his affirmation filed on 15th July 1991 saying that the 15th defendant was not a son of Mr Kwan but the legitimate son of Mr Kwan Heng and Lok Si and the paternal grandson of Mr Kwan Wai Heng. In his subsequent affirmations, three of which were filed on 3rd March 1992 and another one on 18th June 1993, the 6th defendant also deposed to certain matters which were related to this issue. He made a further affirmation on 22nd February 1994 in the Third Party Proceedings relating to this issue. At the beginning of the Third Party Proceedings, counsel for the 6th defendant informed me that the 6th defendant did not wish to give evidence or be cross-examined on his affirmations. She therefore asked me to ignore all except one relevant part of the 6th defendant's affirmations which had been filed in the main action as well as in the Third Party Proceedings. The only part that remained was paragraphs 18 and 19 of his 2nd affirmation filed on 3rd March 1992. Paragraph 18 exhibited certain documents including the birth certificate of "Daniel Kwan", the 15th defendant's declaration in the Judicial Court of Macau and an order made on 10th December 1988 by the Macau Court. Paragraph 19 purported to deny that his challenge on the 15th defendant's status was fraudulent, malicious, defamatory or vexatious. There was an affidavit of the 6th defendant's Macau lawyer, Dr Henrique Saldanha. He also gave evidence in court.

180. Counsel for the 15th defendant invited the 6th defendant to attend for cross-examination. This invitation was declined although the 6th defendant was sitting in court. Having looked at his affirmations regarding the issue in the Third Party Proceedings, I do not think his oral evidence in court would, in any event, have added very much.

181. Two points were relied on by the 6th defendant in the present Third Party Proceedings. First, the birth certificate issued by the Government of Macau together with the relating documents showed clearly that the 15th defendant was not the son of Mr Kwan. Second, the 15th defendant did not oppose to the petition of the 6th and 9th defendants to exclude him as an heir of Mr Kwan and had permitted the Exclusion Order issued by the Judicial Court in Macau to be made in default and with knowledge of such an order having been against him, failed to take any action to set it aside.

182. The 15th defendant had filed a number of affirmations defending his status as a lawful and natural son of Mr Kwan. He gave evidence and was cross-examined. He also called several witnesses including two children of Mr Kwan whose status was not challenged, some relatives and a former classmates. The parties also agreed that I should take into consideration those parts of the evidence adduced in the main action which were relevant to the issue now before me.

The Macau proceedings

183. One of the main points which was raised by the 6th defendant was the Exclusion Order made by the Judicial Court in Macau. The birth certificate and the documents relating thereto were used by the 6th defendant to obtain the Exclusion Order. I shall start by examining the Macau proceedings.

184. According to the 15th defendant and the records, in 1950, Mr Kwan purchased by auction a piece of property at Nos.88A and B Avenida Conselheiro Ferreira de Almeida, Macau. It was purchased in the name of Madam Wong. In 1952, there was a building on the property which consisted of three storeys with twelve units therein. They were all rented out and Mr Kwan collected the rent. In 1959, Madam Wong passed away. Mr Kwan then handled the estate of Madam Wong in Macau and registered the property in the names of himself, the 6th and 9th defendants, each owning one third share in the property. In the probate papers relating to Madam Wong's estate, it was stated that there were two sons, that is, the 6th and 9th defendants. From 1959 to 1980, Mr Kwan continued to receive the rent and regarded the property as his own. The 6th and 9th defendants had given him their powers of attorney so that Mr Kwan could sell the property at any time. In 1981, Mr Kwan purported to sell the property together with the building thereon to Kai Ming Investment Company Limited. The 15th defendant executed the purchase on behalf of the company.

185. After Mr Kwan's death in 1983, the 6th and 9th defendants as co-owners wanted to make a claim to the property. They started proceedings in Macau claiming to be the only two children of Mr Kwan and were, therefore, entitled to the property after the death of Mr Kwan who was one of the co-owners.

186. With the consent and knowledge of the 1st plaintiff, the 15th defendant commenced probate proceedings on 7th December 1987 in Macau and petitioned as "head of the family" who was the equivalent of a personal representative with the right to obtain and distribute the estate of Mr Kwan in Macau. He filed a list of the persons entitled to the estate of Mr Kwan. This list included all the children of Mr Kwan. It was then that the 6th and 9th defendants abandoned their allegation that they were the only two children of Mr Kwan. In support of his petition, the 15th defendant deposed in a declaration dated 21st December 1987 that Mr Kwan and the 1st plaintiff were married under Chinese law and custom. The effect of such a marriage was that Mr Kwan's estate and the 1st plaintiff's property were to be treated separately.

187. On 12th January 1988, the 15th defendant rectified his earlier declaration and declared that Mr Kwan and the 1st plaintiff were married under the provisions of the Hong Kong Marriage Ordinance and that there would be community of property between Mr Kwan and the 1st plaintiff according to the law of Macau. The effect of such community of property was that the 1st plaintiff would be entitled to a larger portion of the property in Macau than if her property was to be treated and held separately from Mr Kwan's estate. The purpose of the petition in the probate proceedings was to claim back the property in Macau from the 6th and 9th defendants who would otherwise claim to be the sole beneficiaries thereof.

188. On 19th January 1988, the 7th defendant petitioned that she should be the "head of the family" instead of the 15th defendant. As a result of this, the 15th defendant then opposed such petition and declared that the 1st plaintiff, as a widow, should be given that position. Hence in March 1988, the 1st plaintiff took the place of the 15th defendant and sought to appoint herself as the head of the family.

189. According to the 15th defendant, the proceedings in the Macau Court consisted of three parts or cases as he described it. The first was in respect of the estate of Mr Kwan concerning the property in Macau. The second was in relation to the sale and purchase contract purported to have been entered between Mr Kwan and Kai Ming Investment Company Limited. The third case was a claim by the company for damages and return of deposit against the estate of Mr Kwan. There were several matters which were in dispute. They included who was going to be the administrator of the estate of Mr Kwan; whether the contract of sale and purchase with Kai Ming Investment Company Limited was valid; what was the amount of money owed by the estate to the company.

190. On 9th March 1988, the 6th and 9th defendants applied for a court order to exclude the 15th defendant from the estate of Mr Kwan on the ground that the 15th defendant was not an heir of Mr Kwan. The basis for such application was a birth certificate issued in the name of "Daniel Kwan" by the Government of Macau and the documents relating thereto saying that Daniel Kwan was the son of one Mr Kwan Heng. It was then that the birth certificate in question and the documents relating thereto were produced to the court in Macau.

191. On 6th April 1988, the 1st plaintiff was appointed by the Macau court to be the head of the family and she confirmed the previous declarations of the 15th defendant. On 22nd April 1988, the 6th and 9th defendants opposed the declaration of the 1st plaintiff on the basis that the 15th defendant was not the son of Mr Kwan but of Mr Kwan Heng.

192. According to the record of the proceedings, the opposition of the 6th and 9th defendants was notified to the lawyers of the 1st plaintiff and the 15th defendant by the court of Macau by registered mail on 16th September 1988. Such notification was recorded and the receipt slip of the registered mail was filed with the court file. On 12th October 1988, the judge in the Judicial Court of Macau stated that the 15th defendant had not opposed his exclusion as an heir of Mr Kwan. The judge therefore made an exclusion order excluding the 15th defendant from succession to the estate of Mr Kwan in Macau and ordered the 15th defendant to pay costs.

193. It seems from the court records that between 1988 and 1990, the court in Macau proceeded with the valuation and disposal of the properties. A dispute arose in relation to the 1/3 share registered and owned by the estate of Mr Kwan. It was alleged that there was an agreement between Mr Kwan and Kai Ming Investment Company Limited whereby that company was to buy the property. Hence, the company joined as a party to the proceedings. There was a conference held on 20th November 1989 before a judge of the Judicial Court in Macau among all relevant parties. The record showed that the 15th defendant was present at the meeting. The lawyer who represented the 6th and 9th defendants, addressed the judge asking him to order the 15th defendant to leave as he had already been expelled from the probate proceedings on the ground that he was not a son of Mr Kwan. The lawyers representing the 15th defendant objected to that request, saying that the 15th defendant was attending not in his personal capacity but as a representative of the Kai Ming Investment Company Limited. As a result of some arguments, the 15th defendant was allowed to stay in the conference where discussions were held in relation to the company's claim against the estate of Mr Kwan.

Evidence on behalf of the 15th defendant

(1) Evidence of the 15th defendant

194. The 15th defendant, needless to say, did not have personal knowledge of who his natural parents were or what his date of birth was. He referred to a copy of the application by Mr Kwan in around 1957 to the Immigration Department for a certificate of naturalisation. In that application, Mr Kwan included the 15th defendant as one of his children. There was also a letter apparently written by Madam Wong during her lifetime in around 1957 to the 14th defendant who was then in Guangzhou in which the 15th defendant's name was mentioned by Madam Wong. Apart from these documents, the 15th defendant also relied on a number of other matters. When Madam Wong passed away in around 1959, her tomb stone had the name of Mr Kwan as her spouse and the names of her twelve children including the 15th defendant. In 1981, when Mr Kwan celebrated his 80th birthday, the invitation cards sent to friends and relatives contained the names of his sons which included the 15th defendant. After Mr Kwan's death, in the obituary and press announcement, the 15th defendant and his wife were included as one of the sons and daughters-in-law of Mr Kwan. The 15th defendant alleged that all these showed clearly that he had been accepted by Mr Kwan, Madam Wong, and the family's friends and relatives as a son of Mr Kwan. Indeed there was no dispute that he had been so accepted for all these years.

195. As far as the 15th defendant knew, he went with Mr Kwan and Madam Wong to Manila while he was a small boy and stayed there until the end of the Second World War. At the end of the war the whole family moved back to Hong Kong and resided at various places until they finally settled down at Nga Tsin Wai Road where their family house was. The 15th defendant studied in the Pui Tao Primary School and then the Heung Tao Middle School. It was the 6th defendant who recommended the Heung Tao Middle School to him because the 6th defendant himself had studied there from 1950 to 1951 and said that it was a Chinese patriotic school. The 6th defendant then went back to China. In 1957, the 15th defendant was asked by Mr Kwan to write letters to the Chinese authorities applying for an exit visa for the 6th defendant to come to Hong Kong. It was in the first part of 1958 that the 6th defendant returned to Hong Kong and lived together in the family residence in Nga Tsin Wai Road. At that time, the 6th defendant was occupying a room on the ground floor while the 15th defendant was on the first floor.

196. In 1957, the 15th defendant finished secondary education in Heung Tao Middle School and in the following year, went to the University of Southern California to study civil engineering. He obtained a Master Degree in civil engineering in about 1965. He got married and returned to Hong Kong in 1972. He then helped in Mr Kwan's business and became the managing director of Kai Ming Investment Company Limited since then. He had been living in the family house in Nga Tsin Wai Road until 1992. That was when the family moved out of the building because of a redevelopment. The 15th defendant denied that he had ever studied or lived in Macau. He denied that the photograph shown in the Macau birth certificate documents was his. He also denied that his signature appeared in those documents.

197. As regard the four deponents who supported the application for a birth certificate in Macau, the 15th defendant said that he did not know the 1st, 3rd and 4th deponents. He had heard of the 2nd one through his mother. The 15th defendant said that Mr Kwan Heng was an uncle and Lok Si was an aunt. The children used to address them as 7th Ka Suk and 7th Ka Sum. He said that according to Mr Kwan, Mr Kwan Heng was his cousin or "brother". He understood that Mr Kwan Heng had passed away in the early 1970s. He knew that Mr Kwan Heng and Lok Si had four sons and one daughter, namely, Kwan Sun On, Kwan Wang On, Kwan Cheung On, Kwan Hoi On and Kwan Siu Suen.

198. With regard to Exclusion Order which was made in 1989 in Macau, the 15th defendant said that he did not discover it until the end of 1990. He did not receive any notice of such an application by the 6th and 9th defendants. He and the 1st plaintiff had in fact instructed and changed quite a number of lawyers in Macau. In was in 1990 that they engaged their fifth lawyer. When that lawyer went through the court file, he noticed that there was such an Exclusion Order against the 15th defendant. The 15th defendant said that he and the 1st and 2nd plaintiffs were very surprised to learn about that Order. They asked the lawyer to lodge an appeal at once and such appeal included the other matter about Mr Kwan's share in the property. He said that they did not know why there was a decision that the 6th defendant could buy the property compulsorily at a very low price. The 15th defendant said that he had paid all the fees for the appeal and he exhibited the relevant cheques for $34,184 as costs payable to the Judicial Court in Macau and the costs for the appeal. There was also a receipt for that sum. The cheques were payable to the lawyer but the 15th defendant only came to know in early 1992 that the lawyer did not pay the money into court. There was also another cheque for $7,364.50 as court fees payable to the Macau court. These were, however, the only documents relating to the payments and the receipts. However, the 15th defendant and the 1st plaintiff had in fact paid other sums. This included a sum of US$10,000 remitted to Lisbon to engage a barrister to come over to assist in the case. The lawyer, after having studied the court papers and the court file, had given certain advice to the 15th defendant. According to that lawyer, there was no chance that the 15th defendant could lodge an appeal in respect of the case regarding the estate of Mr Kwan. This was because the 15th defendant had not paid the Macau Court fees and the time limit for the appeal had expired. In respect of the second case, that is, the matter regarding the contract for the sale and purchase by Kai Ming Investment Company Limited, the lawyer advised that there could be an appeal all the way to Lisbon. But they had to wait for the Macau court to forward the case papers to Lisbon. In respect of the third case, that is the claim for damages and return of deposit, it would seem that the case had already ceased because the previous lawyer, representing the 15th defendant and the 1st plaintiff, had resigned.

199. With regard to the conference held in the Chambers of a judge in the Macau court on 20th November 1989, the 15th defendant said that he was then representing Kai Ming Investment Company Limited. When he entered the Judge's Chambers, a female court staff asked him as to why he was there. He said that he was representing the company and the court staff then did not say anything. At that time, he did not know that there had been made against him an Exclusion Order. According to the 15th defendant, there was a discussion among several lawyers and the Judge in Portuguese. There was no translation of what was said. As far as he was concerned, and to his understanding, he was there to represent Kai Ming Investment Company Limited to pursue the claim for the debts.

(2) Evidence of other witnesses

200. Apart from the 15th defendant, a number of witnesses had been called to testify as to their knowledge and relationship with him. The first witness was one Mr Ho Chin Chang who was a teacher in Heung Tao Middle School between 1949 and 1984. He said he taught the 15th defendant at the beginning of 1950s. He taught Form 1 biology and noticed that the 15th defendant had a very high score. It was because the 15th defendant was a bright student that Mr Ho could remember him. He said the 15th defendant was a hardworking student and was always in the first or second position in class. It was natural for Mr Ho to make enquiries about the 15th defendant's father and came to know that it was Mr Kwan. Mr Ho was shown the photographs or copies of the photographs appearing in the documents relating to the Macau birth certificate. Since those copies were not quite clear, Mr Ho was unable to recognise the person shown in the photographs. However, he added that they did not look to him like that of the 15th defendant. But Mr Ho said he could recognise and he did point out the 15th defendant in court.

201. Another witness, Mr Leung Kwok Chiu, was a teacher of Heung Tao Middle School. He was called as a witness because the 6th defendant's counsel requested that a representative of the school be called in relation to a certificate issued by the headmaster of that school. The certificate stated that the 15th defendant was a student of his school between 1951 and 1957. Mr Leung said that he was asked by the headmaster to make a search into school records. He confirmed that the certificate issued by the headmaster which was now at p.594 of the bundle was in accordance with the school records. That is to say, he confirmed that according to the records, the 15th defendant was a student of Heung Tao Middle School from 1951 to 1957. It turned out that Mr Leung knew the 15th defendant personally and they were in fact schoolmates between 1952 and 1957. Mr Leung said he was not really a very good friend of the 15th defendant although they knew each other. They had worked together and staged an exhibition while they were at school. Mr Leung said that the headmaster wanted to know more about the 15th defendant and so Mr Leung went home and managed to find a photograph which showed the 15th defendant together with a number of students including Mr Leung himself. He said that during the five years, sometimes he and the 15th defendant studied in the same class and sometimes they did not. However he could not remember which year they studied together in the same class. This was the situation until July or August 1957. Although they might not be in the same class, however they were in the same school and they met each other from time to time. He could remember that the 15th defendant was at the top of the class. When Mr Leung was shown the copies of the photograph appearing in the Macau birth certificate documents, he said that they did not look like the impression he had of the 15th defendant at that time.

202. Another person called was Mr Ng Hon Chung. He was the classmate of the 15th defendant while they both studied in Heung Tao Middle School. They were studying together for their junior middle and senior middle education which was equivalent to Form I to Form VI. They were together from 1951 to 1957. He said that he was in the same class as the 15th defendant between 1951 and 1953 but due to an extension in the class, they had to attend different classes for the rest of the years. However, they had been able to keep close contact with each other. They became friendly and sat next to each other. Mr Ng had also been to the 15th defendant's residence at Nga Tsin Wai Road and had played basketball, badminton and table tennis there.

203. Apart from these three persons, the 8th defendant, Madam Kwan Sau Ki also gave evidence. She said that she was about a little over 2 years older than the 15th defendant who was about 2 years senior to the 2nd plaintiff, Madam Kwan Sau Hang. The 8th defendant said that she had lived with the 15th defendant in Manila and had in fact slept in the same room as the 15th defendant. They returned to Hong Kong in 1947/48. They went to the same school, that is, Heung Tao Middle School. This was because the 6th defendant had also studied there and strongly recommended them to go to that school. The 8th defendant confirmed that the 15th defendant had never studied or lived in Macau. However under cross-examination, the 8th defendant admitted that according to her own identity card, she was born in 1953. She had obviously no first hand personal knowledge of her own date of birth.

204. Mr Chui Chung Ping also gave evidence. He had moved into the premises in Nga Tsin Wai Road and worked there as rent collector. He confirmed that Mr Chui Yuen Kui who was a professor in Macau and one of the deponents supporting the application for the birth certificate issued to "Daniel Kwan", was the elder brother of Mr Tsui Yuen Hoi. Mr Chui confirmed that he saw the 15th defendant when he was very young, about 8 to 10 years old and that was in about 1948 when the Kwan family returned to Hong Kong from the Philippines. However, he admitted that he had no personal knowledge of the birth date of the 15th defendant.

205. The last witness called to give evidence on behalf of the 15th defendant was Mr Kwan Sung Hing. He was the husband of Madam Chui Chung Ping. He was one of the sons of Mr Kwan Chai Shi (also known as Kwan Wai Hing) by a concubine, and was therefore a half-brother of Mr Kwan. Mr Kwan Sung Hing also went to the Philippines and lived together with Mr Kwan. He later went to Shanghai and returned to Hong Kong in 1952. He was still working in Kai Ming Investment Company Limited where the 15th defendant was the managing director. He had been working in that company since 1952. He said that a Mr Kwan Kit Hing was the son of the tin fong of Mr Kwan Chai Shi. He confirmed that Mr Kwan Kit Hing was also called Kwan Heng who had four sons and one daughter. He confirmed that Mr Kwan Heng and his family had lived in Macau and that was after the Second World War. However, they had no contact with each other. He said that Mr Kwan Heng's children were born in the Philippines.

The documentary evidence

206. The documents registered with the Conservatory of Birth Registrations of the Government of Macau consisted of the following:

(1) An application by "Daniel Kwan" for a birth certificate;

(2) Copies of sworn declarations by four persons that Daniel Kwan was born in Macau to Mr Kwan Heng and his wife Lok Si;

(3) A graduation certificate dated 15th July 1957 from Chong Tak High School, Macau showing that Kuan Tan Lau had attended and graduated from that school.

The school certificate had the name of Kuan Tan Lau appearing thereon. It was assumed that this was the alias of Daniel Kwan at the time he lived in Macau. This was based on the documents in the file with the Birth Registry, in particular, identification document No.73630 issued to "Kuan Tan Lau or Daniel Kwan" by the Macau police in July 1957.

207. Counsel for the 15th defendant requested to know the circumstances under which these documents came to the knowledge of the 6th defendant and how they came to be produced in the Macau court. Neither the 6th defendant nor his counsel was prepared to disclose how he came to know these documents.

208. In terms of time, the graduation certificate issued by Chong Tak Secondary School in Macau was the first document. It certified that a person by the name of Kuan Tan Lao who was 21 years of age had completed his high school courses, passed all examinations and was approved for graduation. This certificate was dated 15th July 1957 (see p.539 of the Bundle).

209. The graduation certificate was apparently produced in support of an application by a person called Daniel Lam (not Kuan Tan Lau) for the issue of a birth certificate. This application appeared at p.537 of the Bundle. It said that Daniel Kwan who was 21 years of age and single was a student living in Macau at a particular address. It further said that Daniel Kwan was born in Macau at a particular address at 7 o'clock on 15th October 1935 as the legitimate son of Kwan Heng and Lok Si, both of Chinese nationality, the paternal grandson of Kwan Wai Heng and Pun Si and maternal grandson of Lok Io Meng and of Sam Si. It stated that the applicant, Daniel Lam, declared his abovementioned birth and petitioned the Macau Government to certify his declaration as truth and to order a registration. He also named four witnesses who were said to be prepared to testify as to the truth of his declaration. These four persons were Choi Un Koi, described as a professor; Ho Wai Man, a merchant; Lam Ieng, described as a domestic (presumably a housewife) and Lam I, domestic. They were all residents of Macau. This application was signed apparently by a person in the name of Daniel Kwan. It was dated 6th August 1957.

210. Pursuant to this application, it appeared from the record that the Macau Police Department made a statement which appeared at p.538 of the Bundle. This was apparently issued by the Chief of Police Department on 21st August 1957. It stated as follows:-

"The applicant declared that he was born in Macau on the 15th October 1935 at Building No.9, Plaza Ponte E Horta where he lived with the parents until 1940, then went to the Philippines together where he studied and stayed for about ten years.

In October 1950, he returned to Macau with parents and lived in Building No.45, Patio Francisco Antonio until 1945 then later lived in Building No.88B, 1st Floor, Avenida Conselheiro Ferreira de Almeida up to present time.

The applicant studied in Macau in school 'Chong Tac' situated at Travessa Do Bom Jesus, within the period when he was 16 to 20, he was not possessed of any corroborative documents at all.

The applicant's father, a broker of commercial buildings, is now being hospitalised in Hong Kong.

One Certificate of Identification No.73630 was issued by the police at the end of July with the name of Kuan Tan Lau or Daniel Kwan."

211. There were also official records of the declarations of four witnesses. This appeared on p.540 of the Bundle. Professor Choi Un Koi declared that he was a relative of the parents of the applicant and that the applicant was born in Macau at a particular address. Mr Ho Wai Man, the second witness, declared that he knew the applicant and his family well and that the applicant was born in his neighbouring house and that the applicant was now attending school in Macau. The third witness was Madam Lam Ieng who declared that she knew the family before the applicant was born and that the applicant often lived and studied in Macau. Finally, Madam Lam I also declared that she knew the applicant and his family and that the applicant was born in Macau and that she has witnessed the growing up of the applicant since he was born.

Principles applicable

212. Legitimacy, or whether a person is the lawful and natural child of his parents, is sometimes not easy to prove. Apart from scientific evidence, the best evidence would no doubt have come from the parents. Even the father's knowledge would have to depend largely on the mother. That is why very often parties to an action on the legitimacy of a person would have to rely on the presumption of legitimacy. As Professor Cross says in Cross on Evidence, 7th Edition, at p.732:-

"In order to establish a child's legitimacy, reliance may be placed on the presumption of legitimacy. For this purpose it is simply necessary to prove that the child was born or conceived during his mother's marriage to her husband, after which it is incumbent on those denying legitimacy to prove illegitimacy."

213. This presumption has been regarded as greatly weakened (see Phipson on Evidence, 14th Edition, paragraph 4-27). It can be rebutted by evidence on the balance of probability. With regard to this, Lord Reid in S. v. S. and W. v. Official Solicitor [1970]3 All ER 107 said at 109:-

"This means that the presumption of legitimacy now merely determines the burden of proof. Once evidence has been laid it must be weighed without using the presumption as a make-weight in the scale for legitimacy. So even weak evidence against legitimacy must prevail if there is not other evidence to counterbalance it. The presumption would only come in at that stage in the very rare case of the evidence being so evenly balanced that the court is unable to reach a decision on it."

214. Where, as in the present case, there is no scientific evidence or evidence from the parents, the question of whether a person is the lawful and natural child of his parents is by no means an easy one. It must be approached from a common sense point of view, having regard to the evidence available and all the relevant circumstances in the light of the so-called presumption of legitimacy. In my view, the starting point in such a case must be the conduct of the parents. In the normal case, the parents would apply for a birth certificate for their child from the Registry of Births and Deaths. This would be an important piece of evidence going to show the legitimacy of the child. If the birth certificate was obtained within a few days of the birth of the child, this would be, to some extent, a "contemporaneous" document. But I think the importance of this lies in the fact that the parents had taken the trouble of applying for the birth certificate and this act or conduct would amount to a declaration against their own interests. I say this because acknowledging to be the parents of the child, the parents had imposed upon themselves the duty and the responsibility to take care of the child and to bring it up. Furthermore, by doing so, the parents had in effect conferred upon the child a right to inheritance in the case of intestacy upon their deaths.

Assessment of the evidence

215. In the present case, there was no scientific evidence. Both Mr Kwan and Madam Wong had passed away. The 15th defendant did not have a birth certificate. He said he was born in Hong Kong, but did not know why his parents, Mr Kwan and Madam Wong, did not see fit to apply for and obtain a birth certificate for him. In 1962, the 15th defendant applied to the Immigration Department for re-registration and declared that he was born in Canton. He explained that this was because he did not have proof that he was born in Hong Kong and so he made that declaration. Whatever the reason was, the fact remains that there was no birth certificate. He was born before the Second World War and it may not have been the practice in those days to apply for birth certificate.

216. It is, however, not disputed that since the 15th defendant was a very small child, he had been treated as a lawful and natural child by Mr Kwan and Madam Wong. Almost all the witnesses who testified before me and who are relatives of the Kwan family could and did confirm that. In fact, all the parties in the present proceedings, that is, all the persons within the Kwan family are before me. The solicitors for the 15th defendant had written on behalf of the 15th defendant to all the parties except the 1st plaintiff and 1st defendant seeking their confirmation that the 15th defendant was their brother and a legitimate son of Mr Kwan. All of the parties except the 6th, 7th and 9th defendants replied that they were prepared to confirm the status of the 15th defendant.

217. In my view, what is more important is that Mr Kwan had in 1957 applied for naturalisation. In his application, he declared that the 15th defendant was one of his sons. This declaration was unverified as stated therein by the Immigration Department. However, it may, in my view, amount to a declaration by Mr Kwan against his own interest. In other words, not only had Mr Kwan treated the 15th defendant as his natural and lawful son and held him out to his friends and relatives as such, he had in an important and official document, such as this declaration, held out the 15th defendant to be his son. He had brought the 15th defendant up, housed him and educated him, sent him abroad for further studies and upon his return made him the managing director of Kai Ming Investment Company Limited.

218. Apart from that, in a letter which was apparently written by Madam Wong (at p.150 of the Bundle) she said among other things:-

"I can conscientiously say that I have treated all my 12 children in the same caring and unprejudiced way. All requests had been fulfilled. Parents and children are the flesh and blood, so we have to be frank, genuine, joyful and harmonious.

But Tit (the 15th defendant) is going to graduate this term, we wish that he will go to a good country to widen his knowledge of the world and science so to grow up faster."

219. This had been the state of affairs for many many years until 1988 when the 6th defendant, through his lawyers, produced certain documents relating to the Macau birth certificate to the Judicial Court in Macau. These documents related to a person by the name of Daniel Kwan. The question for me is whether this Daniel Kwan to which these Macau documents related was in fact the 15th defendant. If he was, then these documents went a long way to prove that the 15th defendant was in fact the son of Mr Kwan Heng and Lok Si and not the son of Mr Kwan and Madam Wong. If that Daniel Kwan was not the 15th defendant, there would be nothing to cast doubt on the identity of the 15th defendant.

220. The application for a birth certificate of this person, Daniel Kwan, was supported by the declarations of four persons. However, it was quite clear that these four persons only declared that they knew the applicant and his family and that the applicant was born and lived in Macau. These declarations, in my view, are far from capable of showing that the applicant by the name of Daniel Kwan was the 15th defendant and did not help me in any way in deciding whether the applicant was or was not indeed the 15th defendant.

221. Then there was the certificate from the Chong Tak Secondary School. A number of points can be made of this certificate. First, it purported to relate to a person by the name of Kuan Tan Lau, and not Daniel Kwan or the Chinese name of the 15th defendant which was Kwan Tit On. Second, it only stated that this Kuan Tan Lau completed his high school courses in that school without saying how long this person had studied in that school. It also did not tell us which form that person had completed. Presumably, by referring to courses, one would expect that this person must have studied in that school for a number of years. Third, the certificate was issued on the 15th July 1957. It must be remembered that it was in that very year that Mr Kwan had applied to the Immigration Department in Hong Kong for naturalisation and it was in his declaration for the purpose of such application that he included the 15th defendant as one of his sons. If the 15th defendant was in fact the applicant for the Macau birth certificate, why then would he make such an application while Mr Kwan had included him in getting a British passport ?

222. In the application or declaration made to the Macau Police Department, one can see that it was an application by Daniel Kwan. Nowhere in that application or declaration was a reference to the person or name Kuan Tan Lau. It did not refer to any study at the Chong Tak Secondary School. In other words, there did not seem to be any connection between the application or declaration and the graduation certificate. How the certificate could have supported his application or declaration was beyond me. In the application or declaration, this Daniel Kwan declared that he was born in Macau and was the legitimate son of Kuan Heng and Lok Si and the paternal grandson of Kwan Wan Hen and Pun Si.

223. Then there was the report from the Police Department to the Administrator of the Conservatory of Registry in Macau dated 21st August 1957. We do not know how the police obtained the information contained in that report. It is important to note that nowhere in this report was any reference to the parents of the applicant. It referred to a period of study in Chong Tak Secondary School during the years when the applicant was between 16 to 20 years of age. It was added, however, that the applicant "was not possessed of any corroborative documents at all". This was obviously not referring to the graduation certificate to which I have referred. The report also referred to the applicant's father as a broker of commercial buildings by occupation and was then hospitalised in Hong Kong. Again, no name was mentioned as to who that person was. At the end of the report, there was a reference to "the name of Kuan Tan Lau or Daniel Kwan". That was the only link between Kuan Tan Lau and Daniel Kwan. What the basis for that statement was and how it came about was not clear at all.

224. Having carefully assessed these documents, I do not find them to be very reliable. The 15th defendant, of course, denied that he was the applicant or had signed in those documents. Those witnesses who were asked in court to look at the photographs appearing in those documents cast doubt as to whether the photographs depicted that of the 15th defendant

225. What has impressed me most was the overwhelming evidence from the witnesses called on behalf of the 15th defendant confirming that the 15th defendant had in fact studied in Heung Tao Middle School and had never studied in Macau, let alone the Chong Tak Secondary School. The evidence was unsolicited and came from not only his sister and brother but also from his former classmates who are now teachers of that same school in Hong Kong.

226. I am more than satisfied, on the evidence presented before me, that the person who was the applicant of the Macau birth certificate was not the 15th defendant. The only coincidences were that first both the 15th defendant and the applicant for those documents were called Daniel Kwan; second, both the applicant and the 15th defendant signed in the name of Daniel Kwan and third, both these persons were born on 15th October but apparently in different years. It is not surprising that 2 persons with the same English name would sign in the same name (not in the same way) when they are asked to sign in English. As to the date of birth, it may be a co-incidence for 2 persons to have the same day and month, but that is not unusual. I do not think that these could have raised any sufficient doubt in my mind having regard to all the rest of the evidence regarding this issue. There was a suggestion that this Daniel Kwan was in fact one of the four children of Kwan Heng who was a brother of Mr Kwan by the same father but a different mother. I am not surprised that this could be the case, bearing in mind the evidence from one of the witnesses that Mr Kwan Heng and his family had, for some time, resided in Macau.

227. Then there was the Exclusion Order made by the Judicial Court in Macau. I have looked into the history of the Macau proceedings and the summary of the probate procedures as compiled by Dr. Henrique Saldanha called on behalf of the 6th defendant. That summary set out most of the events of the proceedings pursuant to a search by the witness. I note that in almost all of the items concerning a particular event or step in the action, there was inevitably a date following in brackets. However, leading counsel for the 15th defendant pointed out to me that the two items relating to notification to the 15th defendant's lawyer of the application by the 6th and 9th defendants to remove him from the probate proceedings on the ground that the 15th defendant was not a son of Mr Kwan did not bear any date. This appeared at p.554 at the item with a reference of p.92V. Nor was there any date in relation to the item for notification to the 15th defendant's lawyer of the judge's decision to exclude the 15th defendant as an heir of Mr Kwan at the item referred to as p.103V. The 15th defendant said he did not receive any notice of such notifications. In other words, while almost all of the items of events or steps in the action had a date, there was no date for the notification to the 15th defendant's lawyers of the application to remove him and no date in respect of the notification to the 15th defendant's lawyers of the Judge's Exclusion Order. The 15th defendant had given evidence as to how he handled the proceedings and had changed lawyers a few times and how he was, to some extent, misled by his own lawyers. He also gave an explanation for the delay in appealing against the Exclusion Order after he had come to know of such order. I accept his explanation. Afterall, the Exclusion Order was made in his absence and without hearing his explanation or evidence. It was made on the basis of documents which I have found to have no relationship with the 15th defendant. I do not think he could be regarded as having been bound by such an Exclusion Order for the purpose of the present proceedings.

Conclusion

228. Having considered all the evidence, I find the documents produced by the 6th defendant to be of dubious nature. I do not think such evidence was sufficient to rebut the presumption of legitimacy or displace the acceptance by Mr Kwan and Madam Wong of the 15th defendant as their lawful and natural son. I accept the evidence of the 15th defendant and I find his witnesses to be truthful and reliable.

229. In all the circumstances of this case, I have come to the conclusion that there is nothing which I can find to be reliable that can cast doubt on the 15th defendant's status and I am satisfied that the 15th defendant was and is the lawful and natural son of Mr Kwan. The claim for a declaration on the challenge raised by the 6th defendant is therefore rejected.